RANA BHAGWAN DAS, J.--- Petitioner who is a retired civilian officer of Pakistan Army having served in Pakistan Ordnance Factory, Wah through this Constitutional petition seeks to impugn the show-cause notice, dated 4-12-1993 and consequential order, dated 8-6-1994 cancelling allotment of Commercial Plot No,19-C, Al-Murtaza Commercial Lane, Phase VIII, D.H.A. from his name as being unlawful, arbitrary, ultra vires, void, mala fide and violative of rules of natural justice and the Constitution. There is a prayer for a direction to the respondent Authority to restore the allotment of the plot forthwith and a prohibitory order directing the respondent from allotting the plot so cancelled, to a third party or creating any third party interest in respect thereof.
2. Petitioner's case in brief is that prior to joining Pakistan Ordnance Factory, Wah in the year 1949, he was serving as Class-I Officer on the basis of his qualifications and experience in Defence related field in the Army of Hyderabad Deccan. In the year 1967-68 in view of the invitation of Defence Housing Society, inviting applications for membership and allotment of plots from Armed Forces Officers and those civilian officers who had served in any organization under the Ministry of Defence, petitioner applied for membership of the Society and was registered as a member in category-A in compliance with the Bye-laws of the Society. It is averred that he was a civilian officer paid from the Defence Services Estimates and, therefore, enrolled as member of the Society.
After proper scrutiny of his service record, he was allotted two plots through balloting on payment of prescribed charges namely residential Plot No,46-A, Street, Phase-V, measuring 1000 sq. yds. on 9-4-1967 and Commercial Plot No,19-C, Al-Murtaza Commercial Lane, Phase-VIII, measuring 200 sq. yds. on 31-8-1975. "A" lease in respect of residential plot was registered in the name of the petitioner on 14-9-1972 after making full payment of all demands.
3. On or about 13-11-1993 petitioner applied for the issuance of allotment order in respect of commercial plot when he was surprised to receive the impugned notice calling upon him to show cause within 15 days as to why allotment in respect of both the plots allotted to him should not be cancelled under Article 17 of Defence Housing Authority President's Order No,7 of 1980. It is urged that in the notice it was wrongly alleged that the allotments were made in violation of the Bye-laws of the Society which in fact was made in line with the provisions of Bye-laws and entitlement of the petitioner who had paid all charges demanded by the said Society which could not be cancelled by the respondent after the lapse of 26 and 18 years respectively. Petitioner replied to the show- cause notice and requested for relevant information as to the alleged violation resulting in impugned action on the part of the respondent after such a long time. On its part respondent vide letter, dated 20-12-1993 asserted that civilian officers after retirement were not eligible for allotment of plots. Copy of the purported Bye-laws was not supplied to the petitioner as mentioned in the letter. Petitioner responded through letter, dated 5-1-1994 refuting the baseless allegations of the respondent as to the non-allotment of plots to civilian officers after retirement asserting that no such Bye-laws existed at the time of allotment of the plots to the petitioner in 1967 and 1975 respectively. According to the petitioner the expression "civilian officers after retirement are not eligible for allotment of plots", did not find mention in the booklet of the respondent printed in 1988 which, in any event, was just a guide and may not be quoted as authority. Besides there was nothing in the Bye-laws of the Society to disentitle such employees for allotment of the plots as wrongly asserted. On such representation by the petitioner, respondent vide letter, dated 29-5- 1994 regularized the allotment of residential plot of the petitioner but at the same time cancelled the allotment of commercial plot hence this petition.
4. In its counter-affidavit respondent resisted the petition and relied upon Article 17 of the President's Order No,7 of 1980, empowering respondent Authority to scrutinize the allotments made by the defunct Society in violation of the bye-laws. It is urged. that this petition cannot be maintained in law as it involves detailed inquiry into disputed questions of fact which cannot be gone into by this Court in the exercise of its Constitutional jurisdiction. On facts it is stated that as the petitioner retired as civilian officer from Pakistan Ordnance Factory, Wah in 1961 and he applied for the allotment of plot in 1974 he was not entitled to become member of the Society and, thus, not eligible for allotment of the plot. For this reason, it is said that the petitioner concealed this fact in his petition and approached the Court with unclean hands and, is therefore, not entitled to discretionary relief. Bye-law No,7 of the Bye-laws of defunct Society has been heavily relied upon by the respondent which is being reproduced hereunder:-- "Bye-Law No,7: The membership of the Society will be confined to the following.--- (I) Officers of the Pakistan. Armed Forces and Civilian Officers paid from the Defence Services Estimates.
(ii) Officers of the Armed Forces who have been released either in Pakistan or pre-partitioned India and who have subsequently acquired Pakistan Nationality.
(iii) Certain Officers working in the Military of Defence/Military Finance, at the discretion of the Managing Committee. This does not include organizations working under Ministry of Defence, e.g. P.I.A., Shipyard etc.,
(iv) The staff not covered by sub-paragraphs (i) and (ii) above employed by the Society whose minimum salary is 7-50 p.m. and have worked with the Society for a minimum period of 10 years.
(v) The allotment of plots shall always be through open ballot and the procedure of balloting shall be the most equitable based on principles of first come first served except those placed at the disposal of Commanders-in-Chief of three services. The discretion for out of turn and special allotment will be with the President of the Society.
All persons who have signed the application for registration and are qualified to be members under this Bye-law are the original members. All such members, however, must comply with Bye- law No,10 before becoming eligible for allotment of land in the Society. Preference will be given to those who have not been allotted land anywhere in Pakistan and do not possess a house."
5. As regards the residential plot respondent pleaded that since the petitioner had constructed a residential house on such plot and was living therein with his family allotment thereof was not cancelled on humanitarian grounds whereas the allotment of commercial plot was cancelled it being in contravention of Bye-laws. A sum of Rs,38,856 received from the petitioner on account of this plot was returned to him.
6. An affidavit in rejoinder was filed to the counter-affidavit refuting and controverting the factual as well as legal position agitated in the counter-affidavit by the respondent.
7. Pursuant, to an order passed by the former Acting Chief Justice on 6-8-1995 the petition was fixed for early hearing and final arguments heard by a Division Bench on 13-5-1996 when judgment was reserved which could not be announced as one of the Honourable Judges ceased to be a Judge of this Court in view of the judgment in Al-Jehad Trust case. After numerous adjournments it was listed for hearing before this Bench when we have had the privilege of hearing learned counsel for the parties at quite some length.
8. Mr. Abid S. Zuberi learned counsel for the petitioner ably took us through various documents tending to show that the petitioner was allotted residential as well as commercial plot by the defunct Society and that all requisite demands were fulfilled by the petitioner from time to time maturing in the execution of "A" lease in his favour in respect of the residential plot. He seriously and vigorously impugned the show-cause notice as mala fide. Assailing the act of cancellation of commercial plot after a lapse of 18 years learned counsel contended that the cancellation of the plot was wholly unwarranted, void ab initio, in violation of contractual obligations, against settled principles of natural justice and without jurisdiction.
9. Conversely Raja M. Irshad, learned counsel for respondent vehemently urged that since the petitioner had obtained allotment of the plot in violation of the Bye-laws of the defunct Society to which the respondent Authority is a lawful successor by operation of law, it was competent for the respondent to cancel the allotment on the authority of Article 17 of President's Order No,7 of 1980.
10. In order to comprehensively appreciate the controversy between the parties, it may be pertinent to reproduce Article 17 of President's Order No,7 of 1980 which reads as under:-- 11."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,--
(a) ......................
(g) .......................
(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 transfers 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."
11. Bye-Laws of the Pakistan Defence Officers Cooperative Housing Society seem to have been framed and registered in March, 1953. In terms of Bye-Law No,7, clause (i) petitioner in his capacity as civilian officer paid from the Defence Services Estimates was duly enrolled as a member of the Society in A-Category and entitled to allotment of plots which in fact were allotted to him in open balloting. He had paid all dues in respect of such plots and a valid "A" Lease was executed in his favour in respect of the residential plot on which he constructed a house for his shelter which though included, in the show-cause notice for cancellation of such allotment, was regularized, approved and upheld by the respondent Authority meaning thereby that he continues to be the member of the respondent Authority even after the creation of the Authority and dissolution of the Society by operation of law. It is ironical that these Bye-Laws were not made available to the petitioner in order to apprise him of actual position and to provide him an opportunity to show cause against the proposed act of cancellation of his allotment though specifically asked for.
Indeed for all practical purposes allotment had attained finality. In response to his reply to show cause and humble request for supply of the relevant Bye-Laws, the petitioner was supplied with only an extract of Bye-Laws to the effect that civilian officers after retirement are not eligible for allotment of plot. Although it is the case of the petitioner that even this extract was not appended to the letter of the respondent Authority, a close scrutiny of Article 17 of the President's Order No,7 of 1980 suggests that after the conclusion of the contract between the parties which was actually and practically acted upon, respondent was not in law entitled and authorized to cancel such allotment on the basis of so-called violation of Bye-Laws. Assuming for the sake of argument that at the time of allotment the petitioner was not entitled to allotment of the plot as a retired civilian officer paid from Defence Services Estimates at the relevant time Managing Committee of the defunct Society was competent to make allotment of a plot to any person notwithstanding anything contained in the Bye-Laws of the Society. Surely the respondent Authority which succeeded the defunct Society by operation of law was not competent to reopen a past and closed transaction by virtue of Article 17 referred to hereinabove, for a vested right had accrued to the petitioner by reason of such allotment in his favour and by making huge investment at the relevant time.
12. Adverting to the accrual of a vested right in favour of the petitioner, reference may be made to observations made by a Full Bench of this Court in Zohra v. Government of Sindh PLD 1996 Kar. 1 expressing the view that a Vested right is an immediate or a fixed right to present or future enjoyment and one that is not independent on any event that is uncertain; in other words, a right which is not subject to any contingency. In our view by reason of a valid allotment of commercial plot in dispute in favour of the petitioner, doctrine of promissory estoppel may also be pressed into service which right is available in Pakistan against the Government and its functionaries subject to certain limitations. This view was propounded and highlighted in Army Welfare Sugar Mills Ltd. v.
Federation of Pakistan 1992 SCM R 1652. It may also be pertinent to note that an authority competent to make order has power to undo it but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual and principle of locus penitential would be available under the provisions of section 21 of General Clauses Act, 1897. Similar view was expressed in Al-Samrez Enterprise v. Federation of Pakistan 1986 SCM R 1917 holding that if a binding contract was concluded between the appellants and the exporter or steps were taken by the appellants creating a vested right to the then existing notification granting exemption, the same could not be taken away and destroyed in modification of the earlier one, on the ground that under section 21 of the General Clauses Act, the Government could exercise the power of modification.
13. There is another aspect of the case. It is admitted that allotment of residential plot in favour of the petitioner remained intact and untouched as according to the respondent it was regularized on humanitarian consideration. In case the respondent was convinced with justness and reasonable cause shown by the petitioner with regard to the residential plot, similar consideration, in all fairness, should have prevailed with the respondent Authority who cannot be permitted to approbate and reprobate at one and the same time. It is paradoxical to assume that the petitioner continues to be the member of the Authority and as such member holds the allotment of residential plot by virtue of lease, upon which he has constructed a residential house on it, he is considered to be not eligible to retain the commercial plot lawfully allotted to him in his own right.
14. As by allotment of a commercial plot in favour of the petitioner who ID had acted upon it by making compliance with all demands from the defunct I Society from time to time, a valuable right had accrued in his favour which D could not be lightly interfered with. A Division Bench of this Court in Noor Muhammad v. Karachi Development Authority PLD 1975 Kar. 373 observed that the argument that under the terms of the allotment regulations of the K.D.A., the allottee is a mere licensee until the allottee builds a house and executes a lease with K.D.A., was repelled relying upon the Supreme Court's decision in the case of Kamaluddin Ansari v. Director, Excise and Taxation PLD 1971 SC 114 that the allottees of plots in the P.E.C.H. Society were neither licensees nor sub-licensees though they had been so labelled in the agreements executed between Government, Housing Society and the individual owners for they had real interest in the land allotted to them. In Muhammad Mustaqim Khan v. P.E.C.H. Society PLD 1985 Kar. 326 a Division Bench of this Court consisting of Ajmal Mian and Haider Ali Pirzada, JJ. (as their Lordships then were) after distinguishing between a person being eligible to be a member of respondent Society and being eligible to an allotment of a plot held that the fact that allottee of a plot in Housing Scheme was not member of the Society would not render allotment of plot to non-member illegal in the absence of anything in law or in practice of Society prohibiting allotment of plot to a non-member. Their Lordships went to the extent of expressing their view that a Society in a fit case may allot a plot of land to a non-member.
15. With reference to the action impugned in this petition, learned counsel for the petitioner also referred to the fundamental rights guaranteed to the petitioner under Articles 23 and 24 of the Constitution. He vehemently urged that while Article 23 grants every citizen the right to acquire, hold and dispose of property in any part of Pakistan subject of course to the Constitution and any reasonable restriction that may be imposed by law in the public interest, Article 24 lays down in unequivocal language that no person shall be deprived of his property save in accordance with law. Mr. Zuberi pointed out that where a statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a constraint in operating that power so as to exercise it justly and reasonably. In the words of Scar man, L.J. "Excessive use of lawful power is itself unlawful". Indeed this was the view expressed by Supreme Court of Pakistan in Independent Newspaper Corporation (Pvt.) Ltd. v. Chairman, Fourth Wage Board 1993 SCMR 1535. The petitioner in the case in hand seems to be victim of discrimination and arbitrariness on the part of the respondent Authority which in law cannot be upheld by any stretch of reasoning and the canon of law. Needless to observe, learned counsel for the respondent was not in a position to controvert the aforesaid legal and factual position except relying upon the authority given to the respondent under Article 17 of the President's Order No,7 of 1980.
16. In view of what has been stated above, the petition is allowed. Cancellation of allotment of commercial plot in favour of the petitioner is declared to be illegal, void and without any lawful authority and the respondent Authority directed to restore such allotment forthwith.