' SABIHUDDIN AHMED, J.---The petitioner by way of this petition has called in question the cancellation of allotment of Plot No,S-20, Summerset Street, by the Executive Board of the respondent in the purported exercise of power conferred by Article 17 of the Pakistan Defence Officers Housing Authority Order (P.O. No,7 of 1980). Briefly, the facts as averred in the memo. Of petition are that the petitioner was Sub-Inspector in the Excise and Taxation Department, Government of Sindh, in 1975 and was deputed to conduct a survey of properties within Defence Officers Cooperative Housing Society and collect property tax therefrom. According to the petitioner he performed such service with great dedication and on account of his extraordinary performance, the Managing Committee of the Society decided to allot him the aforesaid plot in the exercise of its power to allot plots for special reasons and consideration. According to the petitioner a similar plot was allotted to another colleague of his S. Rafique Ahmad for the same reasons.
Accordingly, Allotment Order signed by the Secretary of Society dated 29-9-1976 was issued and the petitioner paid an amount of about Rs,6,700 by way of development charges etc. Subsequently, sublease in the Standard Form-A of the Society was executed in favour of the petitioner through registered instrument dated 27-11-1976.
2. In 1980, through President's Order No,7 of 1980 the Defence Officers Cooperative Housing Society was dissolved and its functions; assets and liabilities were taken over by the respondent authority constituted in the aforesaid President's Order. On 28-11-1985, the petitioner received a letter from the respondents authority signed by its Secretary stating that the petitioner despite Demand Notices had failed to pay the outstanding dues of the respondents authority and, therefore, the allotment/lease in his favour was cancelled w,e,f, 1-9-1985. However, he was being given final chance to have the allotment restored within eight (8) weeks of the receipt of the aforesaid letter upon payment of Rs,32,346.70 together with restoration fee. According to the petitioner the amount was paid and thereupon the allotment/lease stood restored in his favour. Nevertheless, on 28-4- 1990 the petitioner received a show-cause notice from the Secretary of the respondent stating that during scrutiny of his file it appeared that the allotment was made to him in contravention of the bye-laws of the dissolved Defence Officers Cooperative Housing Society Ltd. Inasmuch as he was not eligible to become a member of Society under its bye-laws on the basis of which the allotment could be made in his favour and the same was liable to be cancelled by the Executive Board under Article 17 of P.0.7 of 1980. He was, therefore, called upon to show-cause why the aforesaid allotment should not be cancelled. The petitioner submitted a reply to the aforesaid notice on 9-5-1990 but apparently the same was not found satisfactory and by letter dated 22-7-1990 he was informed that the allotment was made in contravention of the bye-laws, the Executive Board found that he was not eligible for allotment and, therefore, the same has been cancelled under Article 17 of P.O.
No,7 of 1980. Aggrieved by the same the petitioner has approached this Court under Article 199 of the Constitution.
3. The respondent filed a counter-affidavit contending that the petition was not maintainable as it involved disputed questions of fact. It was further stated that the allotment had been in violation of bye-laws of the defunct Society inasmuch as Membership of the Society could only be given to certain specified categories of persons and allotment of plots was to be made through open ballot.
The petitioner was neither eligible for membership of the Society nor was allotment made through open ballot. Respondent further contended that the lease "A" had been fraudulently executed and in any event it was only a licence and the respondents was competent to cancel the same in the event of fraud. Subject to the above the contents of memo. Of petition were not controverted.
4. Before adverting to the contentions of the learned counsel on merits, it, may be appropriate to deal with a preliminary objection raised by Raja Muhammad Irshad, learned counsel for the respondent, to the effect that disputed questions of fact were involved and as such this petition was not maintainable. Learned counsel candidly conceded that notwithstanding bye-law 7, the Managing Committee of defunct Defence Officers Cooperative Housing Society could indeed, in terms of bye-laws 8 allot a plot to a person not eligible to become a member under Bye-law 7. He nevertheless contended that in fact no meeting of the Managing Committee was held on 29-9- 1976, i,e, the date mentioned in the allotment letter and, therefore, there was no valid allotment in favour of the petitioner in terms of bye-law 8 either. However, these facts according to learned counsel could only be established through evidence in a regular civil suit and not in proceedings under. Article 199 of the Constitution.
5. Before dealing with the merits of this objection, we deem it appropriate to clarify a popular misconception. Though indeed this Court does not normally enter into intricate factual controversies required to be resolved through recording evidence of witnesses, it is not quite correct to say that it has no jurisdiction to entertain proceedings where facts alleged by one party are controverted by the other. There is nothing in the language of Article 199 of the Constitution to suggest so the only clog on the power of the Court being existence of an adequate alternate remedy.
6. Soon after the promulgation of the 1962 Constitution, (Article 98 whereof was a replica of Article 199 of the present Constitution) a specific question as to whether it was appropriate to proceed under Article 98 where relief could be given only after resolving disputed questions of fact was referred to a Full Bench of the erstwhile West Pakistan High Court. In a lucid exposition of law (if we may say so respectfully) late Manzur Qadir, C.J., speaking for a unanimous five member bench in the well-known case of Mahboob Ali Malik v. Province of West Pakistan (PLD 1963 Lahore 575), after laying down the parameters for determining whether an alternate remedy was adequate and equality efficacious (which are by now too well-settled to be recapitulated) in para.13 of the judgment proceeded to observe:--- "When the Court, after applying the tests mentioned in paragraph 13 comes to the conclusion that it ought to exercise its jurisdiction under Article 98, it will not hesitate to take evidence, whether oral or documentary; ' but in deciding whether it ought to exercise its jurisdiction under Article 98, the consideration that it will have to take evidence will pay an important, and almost decisive role, in cases where the relief of the requisite nature or extent can also be had in another forum."
7. The above judgment has been followed and cited with approval in several subsequent cases including the Supreme Court judgment in Salahuddin v. Frontier Sugar Mills (PLD 1975 SC 244). In the same view Abid Hussain v. Government of Sindh (PLD 1984 Kar. 269) Late Abdul Hayee Qureshi, C.J. Speaking for a Division Bench of this Court observed:--- ' But to say that if there is dispute on facts the jurisdiction of this Court would be completely barred, would be stating the law too broadly. Taking such a view may ever persuade a party to set up a sort of semblance of dispute on facts, and urge before the Court that jurisdiction should not be exercised. This obviously could not be the intention of Constitution makers."
8. We are indeed aware that in several cases under Article 199, the High Courts have recorded their findings on disputed facts when it was possible to do so on the basis of affidavits and documentary material on record. On certain occasions particularly in matters involving detention of citizens even oral evidence has been recorded. In M.Y. Khan v. K.M. Aslam (1974 SCMR 196) the Hon'ble Supreme Court observed that there was no bar to take evidence or even additional evidence in order to consider whether the impugned order is based upon relevant evidence, or, when the additional evidence is not of a complicated nature. In view of the above, in our humble opinion, the mere existence of a factual controversy will not bar the maintainability of this petition.
However, if it can be shown that there is a substantial and not merely illusory factual dispute, the relief claimed can only be granted upon 'resolution of such dispute and such resolution cannot be effected on the basis of affidavits and material on record, but requires an elaborate inquiry into facts,, the Court would be persuaded to take the view that the alternate remedy by way of a civil suit is adequate and more efficacious and, therefore, a petition would nu lie.
9. Against the above legal position, Raja Muhammad Irshad, learned counsel for the respondent urged that the respondent was entitled to prove through evidence that no allotment of a plot in favour of the petitioner had in fact been made by the Managing Committee of the defunct Defence Officers Cooperative Housing Society and this would be fatal to the petitioner's case. We invited learned counsel to show whether the respondent had raised such factual plea in their counter- affidavit but we find that no such plea was specifically raised. In fact the objection as 'to the maintainability of this petition was raised in para.3 of the counter-affidavit on an altogether different factual plea, i,e, that lease had been fraudulently executed. Obviously the respondent could not be allowed to lead evidence in respect of a factual assertion not pleaded. Learned counsel however relied upon the following statement contained at the end of para.4 of the counter-affidavit: "The allotment of plot S.20, 8th Sunset Street Phase H, measuring 600 sq. Yards was made neither through ballot nor approved by the Managing Committee of the Society. The said allotment was in contravention of the bye-laws of the then society and, thus, liable to be cancelled by the Executive Board of the Pakistan Defence Officers Housing Authority."
10. Indeed a general averment as to non-approval of the Managing Committee can be found in above-quoted statement but there is no specific assertion to the effect that upon verification of records it was found that the Managing Committee had never allotted the plot to the petitioner or that the allotment letter was premised upon incorrect information or issued without proper authority or that no meeting of the Managing Committee was in fact held on the date mentioned in the letter. Moreover, reading the above-quoted statement in its proper context shows that at the relevant time the concerned functionaries of the respondent were not even alive to the provision that allotment could be made even in favour of a person not covered by bye-law 7.
11. In para.4 of the counter-affidavit itself the provisions of bye-laws 7 have been extensively reproduced and even in the above quoted extract relied upon by the learned counsel, reference has been made to the requirement of balloting, which is again stipulated in bye-laws No,7. In the show-cause notice issued to the petitioner the only ground communicated to him was ineligibility to become member of the Society under bye-laws 7 and though he claimed in his reply that the allotment had been made for special reasons the cancellation order does not indicate that the provision relating to special allotment to persons not qualified to be members was ever considered. In view of the above we are of the opinion that factual controversy raised by the learned counsel does not appear to be borne by the counter-affidavit filed and cannot be allowed to be raised at this stage.
12. Mr. Abul Inam, learned counsel for the petitioner in the first instance, contended that the so- called power of the Executive Board of respondent to cancel allotment ceased to be operative after the execution of sub-lease (A) in favour of the petitioner on 27-11-1976. According to him such sub- lease could only be cancelled in terms of the provisions of section 111 of the Transfer of Property Act, i,e, for breach of a specific convenant of the lease.
13. Raja Muhammad Irshad, learned counsel for the respondent in reply made twofold submission; he stated that in the first place the respondent had specifically taken the plea that the aforesaid sub-lease had been fraudulently executed and unless they were furnished a proper opportunity to lead evidence to substantiate their contention document could not be relied upon. Alternatively he argued that though described as a sub-lease, the document in question was merely a licence to raise construction and did not vest title in the property in favour of the petitioner. He referred to clause (2) of the sub-lease stipulating that only upon completion of the building in terms of the prescribed condition the sub-lessee would be entitled to a lease for 99 years in Form B' and until such lease had been granted the lessor will not have any interest in the plot except that of a bear licence.
14. Mr. Abul Inam, in reply, relied upon the judgment of this Court in the cases of Muhammad Azeem v. P.E.C.H.S. (PLD 1985 Karachi 481) and Shahryar Textile Mills v. Sindh Industrial Trading Estate (1988 CLC 1948) to contend that even mere allotment of a plot with licence to raise permanent structure thereon amounted to a lease and could not be cancelled except due process of law. Nevertheless we think for reasons discussed hereinafter, that it is not necessary to finally decide a question whether the petitioner was a lessee or merely an allottee of a plot for the purpose of disposal of this petition.
15. Alternative Mr. Abul Inam argued that even if the document described as sublease was ignored and the petitioner was treated as a mere allottee of the plot, the allotment itself constituted a right in immovable property which could not be taken away except in accordance with law. Mr. Syed Tariq Ali, learned Standing Counsel appearing on Court notice, also supported Mr. Abul Inam's contentions to the aforesaid extent and drew our attention to Division Bench decisions of this Court in the cases of Haji Noor Muhammad v. K.D.A. (PLD 1975 Karachi 373) and Pakistan Medical Association v. Government of Sindh (1979 CLC 382), where the aforesaid proposition has been clearly laid down. In view of the above the crucial question for determination would be whether the Executive Board of respondent was duly empowered to cancel the allotment of the plot made in favour of the petitioner.
16. To determine the above question it may be pertinent to reproduce the relevant provision of Articles 17 and 18 of the Pakistan Defence Officers Housing Authority. Order, 1980 (P.O. 7 of 1980).
"17.Dissolution of the Society, etc.---Upon the commencement of this Order, the Society, the Executive Committee of the Club and the Foundation together /with its Board of Governors shall stand dissolved and upon such dissolution,
(h) all allotments and transfers of plots, whether residential commercial or otherwise, made by the Society before such dissolution shall be deemed to be allotments and transfer made by the Authority: ' Provided that the Executive Board may---
(i) cancel such allotments which were made or issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society:
(ii) alter the area of any plot involving duplicate allotments and re-allot the same in such manner as it may consider appropriate; and
(iii) pass such orders in respect of transfer of plots involving duplicate allotments as it may deem fit.
18. Power to cancel allotments, etc.---(1) The Executive Board may cancel any allotment, transfer, licence or lease in respect of any plot or housing unit in any project or scheme in the specified area if the allottee, transferee, licensee or lessee fails to pay the dues or instalments including development charges in respect of such plot or housing unit, within six months from the date of receipt of the demand in writing or within such extended time as the Executive Board may, in special case, fix, and thereupon the plot or the housing unit, with or without construction thereon, shall be resumed by the Authority.
(2) When a plot or a housing unit is resumed by the Authority under clause (1), the Authority shall sell it by public auction or otherwise and refund the sale proceeds, after deducting its dues and the expenses incurred on the public auction, to the defaulting allottee, transferee, licensee or, as the case may be, lessee."
17. Mr. Abul Inam argued that in terms of Article 17 all contracts made by the defunct Society were to be honoured by the respondent authority and only such allotments could be cancelled which were found to be in contravention of the bye-laws of the Society or the Resolution of the Managing Committee. Admittedly the only reason given for cancelling the allotment in petitioner's favour was that he did not qualify to be a member of the Society in terms of bye-law 7, whereas bye-law 8 clearly indicated that allotment for special reasons could also be made in favour of a person not eligible to be a member. As such the power under the proviso to Article 17(h) of the Order cannot be exercised in the circumstances. Moreover, he urged that eligibility to allotment of a plot was different from eligibility to become a member of a Society, as held by Division Bench of this Court in Muhammad Mustaqeem Khan v. P.E.C.H.S. (PLD 1985 Karachi 326), wherein the following observations of Ajmal Mian, J. (as his Lordship then was) may be reproduced with advantage: "We are also inclined to hold that there is a distinction between a person being eligible to be a member of respondent No,1 Society and being eligible to an allotment of a plot. A person cannot become a member of respondent No,1 Society unless he is an employee of the Government of Pakistan in view of the above-quoted by-law 7 but there is a no parallel bye-law providing that an allotment of a plot can only be made to a member of the Society. It is true that ordinarily and generally. The Societies are formed with the main object of providing residential plots to its members. But this fact alone will not render the allotments of plots to non-members illegal in the absence of any thing in law or in practice of respondent No,1 Society prohibiting allotments of plots of non-member."
17. Raja Muhammad Irshad, learned counsel for the respondent candidly conceded that a plot could no doubt be allotted to a person not eligible to become a member but it could only be done for special reasons or special consideration and the Executive Board of the respondent had the power to cancel such allotment if it found that no such special reasons existed in favour of the petitioner. We regret we are unable to subscribe to this view. A perusal of the above quoted Articles 17 and 18 would show that though independent powers have been conferred upon the Board to cancel allotments the power to cancel on the ground of contravention of bye-laws has not been conferred under Article 18 but only by way of a proviso to clause (h). Of Article 17. It is settled law that the terms of a proviso have to be strictly construed keeping in view the context of the main provision. Evidently the main object of Article 17 is to transfer assets and liabilities of the defunct Society to the respondent authority and clause (It) contemplates that all allotments and transfers of plots made by the Society shall be deemed to have been made by the respondent authority. The -power to cancel allotments contained in the proviso is an exceptional power which could only be exercised if it is found that the allotment was contrary to the provisions of the bye-laws or a Resolution of the Society. Petitioner's eligibility under the bye-laws has been conceded and no resolution of the Managing Committee disqualify him has been relied upon. We are, therefore, of the opinion that the Executive Board of the respondent was not competent to sit in judgment over the decision of the. Society as long as the same was intra vires its powers. It may well be that the members of the Executive Board did not share the opinion of the Managing Committee or the functionaries of the defunct Society as to existence of special circumstances in favour of the petitioner but they were primarily required to honour the commitment made by the Society and did not have any power to review the same. The impugned cancellation, therefore, in our view is ultra vires the powers of the Executive Board.
18. Mr. Abul Inam next pointed out that even after the, dissolution of the Society and formation of the respondent authority the respondents themselves called upon the petitioner to pay an amount of Rs,32,347 by way of development charges and restoration fee. The petitioner having acted to his detriment and having paid substantial sums of money the doctrine of promissory estoppel was fully attracted and the respondent had lost locus poetentiae to recall the allotment. He further urged that a plot, bearing No,S-18 on the same street allotted to his colleague, S. Rafiq Ahmad under identical circumstances had not been cancelled and as such the action against the petitioner was mala fide and discriminatory in violation of fundamental rights guaranteed under Article 25 of the Constitution. We find considerable force in both these contentions as well. We have noticed that while the petitioner categorically mentioned the fact that a plot was also allotted to S. Rafiq Ahmad and had not been cancelled in paras.5 and 13 of the memo. Of petition, no reply whatsoever was furnished 1-)y the respondents in their counter-affidavit.
19. In view of the foregoing we are of the opinion that the order purporting to cancel the allotment in petitioner's favour dated 22-8-1990 is without lawful authority and of no legal effect and would allow the petition as such. There would, however, be no order as to costs. We are grateful to the learned counsel for the parties and Syed Tariq Ali, learned Standing Counsel for their valuable assistance.