1. ' SAIYED SAEED ASHHAD, J.--- In this Constitutional petition, the petitioner has challenged the legality and vires of the letter, dated 1-121994 issued by the Secretary of the respondent authority informing the petitioner that he was not entitled for membership and allotment of the plot in the respondent authority and conveying the approval of cancellation of the Commercial Plot bearing No,35-C, Al-Murtaza, Commercial Lane No,3, phase VIII, measuring 200 square yards.
2. ' The brief facts leading to the filing of the aforesaid Constitutional , petition are that the petitioner while working as Deputy Controller of Military Accounts had been admitted as a member of the then Pakistan Defence Officers Cooperative Housing Society, which was superseded by the Pakistan Defence Officer Housing Authority by Presidential Order 7 of 1980 and vide application, dated, 22-3-1974 applied for allotment of commercial plot wherein he disclosed his membership/file number of the then Pakistan Defence Officers Cooperative Housing Society hereinafter referred to as the defunct Society as DS/N/A/1647/927. The respondent in pursuance of the aforesaid application allotted a commercial plot to the petitioner and conveyed this fact to him vide their letter, dated 25-10-1975. The plot number was 35-C, Al-Murtaza, Commercial Lane 3, Phase VIII, measuring 200 sq.Yds. Subsequently, it transpired that the plot in dispute had been wrongly allotted to the petitioner being in contravention of the bye-laws of the defunct Society as the petitioner at the time of submission of application for allotment of the plot had retired from the post of Deputy Controller of Military Accounts, Karachi and was not eligible for allotment of the aforementioned plot. A show-cause notice, dated 27-3-1994 was issued to the petitioner, calling upon him to show cause as to why the allotment made in his favour in respect of the aforesaid commercial plot be not cancelled. This letter was replied to by the petitioner vide letter, dated 9-4- 1994, wherein the stand taken by the petitioner was that by virtue of the application, dated 23-3- 1974 he had applied for allotment of a commercial plot and not for obtaining membership of the defunct Society, which had already been given to him long time ago while he was holding the post of Deputy Controller, Military Accounts, Karachi. The petitioner further stated therein that there was nc rule, regulation or any provision which barred the allotment of a plot either in the defunct Society or the Respondent Authority to a member who had retired from service. The explanation submitted by the petitioner remained unanswered for long time which compelled the petitioner to write another letter, dated 20-8-1994 to the Administrator of the respondent wherein a copy of his explanation/reply, dated 1-12-1994 was attached. The respondent vide its letter, dated 9-4-1994 intimated the petitioner of the cancellation of the plot in dispute on the approval of the Executive Board. Having no other/alternate and/or efficacious remedy, the petitioner filed this Constitutional petition, wherein he sought the following reliefs:--
(i) Set aside the impugned order of the Respondent communicated through its Letter No,SSI/WL- 3402/P7D, dated 1-12-1994, Annexure "G" here to, and/or any order of cancellation of the said Plot passed by the respondent ;
(ii) Direct the respondent to restore the Petitioner's allotment in respect of the said plot;
(iii) Declare that the allotment of the said plot made in favour of the petitioner was legally and validly made;
(iv) Direct the respondent not to transfer/allot the said plot to any other person(s) without the permission and consent of the petitioner ;
(v) Any other, further and/or better relief that this Honourable Court may deem just and proper in the facts and circumstances of the case.
(vi) Exemplary costs.
3. ' The petitioner also filed an application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C., praying that the respondent be restrained from allotting and/or transferring the plot in dispute to any other person or in manner whatsoever create any third party rights or interest in respect thereof. This application was supported by the affidavit of the petitioner. On behalf of the respondent its Secretary, Lt.-Col. (Retd.) Muhammad Anwar Khan filed counter-affidavit where it was admitted that the petitioner became a member of the defunct Society in 1963 when he was in service but as he had retired at the time of allotment of the plot in dispute he was not eligible and was allotted the plot in dispute in violation of the bye-laws of the defunct Society as well as of the bye-laws of the respondent. It was further stated that retired civilian officers were not entitled to allotment of plots in the respondents Authority and basically the respondent Authority was established for the benefit of the officers of the Armed Forces. It was further stated that only serving civilian Class-1 Officers paid from Defence Services Estimate were eligible for allotments of plots.
4. ' We have heard the arguments of M/s. Qazi Faez Isa and Nazar Hussain Dhoon, learned counsel for the aforesaid parties, have perused the material on record, the relevant provisions of Rules and Regulations applicable to the members of the respondent and allotment of plots as well as the case-law relied upon by the learned counsel for the parties.
5. ' The maintainability of this Constitutional petition was vehemently attacked by Mr. Nazar Hussain Dhoon, learned counsel for the respondent, on the ground that respondent is an Authority established by a Presidential Order of performing functions relating to the armed forces of Pakistan and one of the main objects is the welfare of the servicing and retired Military Personnel by providing them plots of land for construction of houses for their and their families' dwelling. He further submitted that Article 199(3) of the Constitution of Pakistan prohibits the passing of an order in the nature of writs provided in clause (1) of Article 199 of the Constitution when the action or the subject matter in dispute relates to a person who is a member of armed forces of Pakistan, or for the time being is subject to any law applicable to the armed forces or is entrusted with the performance of functions and duties relating to the armed forces of Pakistan. He further submitted that the contents of clause (3) of Article 199 of the Constitution are absolutely clear and unambiguous and the respondent establishment would be covered by the provisions of above clause (3) as it would be deemed to be a person carrying on the functions and/duties in relation to the armed forces of Pakistan and is subject to the law applicable to the armed forces of Pakistan.
6. Mr. Nazar Hussain Dhoon further submitted that for resolving the dispute in issue intricate questions of fact are required to be decided and a detailed inquiry is to be undertaken which would require recording of evidence and such procedure is not to be resorted to in a Constitutional petition.
7. ' Mr. Qazi Faez Isa, learned counsel for the petitioner, vehemently refuted the arguments raised by Mr. Nazar Hussain Dhoon with regard to maintainability of this Constitutional petition and submitted that clause (3) of Article 199 of the Constitution of Pakistan would not bar filing of a Constitutional petition against the respondent Authority, as it has neither been established under the Pakistan Army Act nor is performing any functions which could by any stretch of imagination be considered to be in exercise of any of the provisions of the Pakistan Army Act and further that it has been constituted for the purpose of acquiring land for allotment thereof after carving out plots to the Officers of the Pakistan Armed Force with a view to solve their residential problems. He further submitted that the above object is neither covered by the Army Act nor is in any manner incidental or related to the functions and duties to be performed by the armed forces. He referred us to the case of Ziauddin Ahmed v. Pakistan Defence Officer Housing Authority 1999 CLC 723 wherein this Court while examining and considering the question of cancellation of allotment of a plot of land by the respondent in a Constitutional petition filed by the aggrieved party, after taking into consideration all the facts and the circumstances of the case, held the cancellation to be illegal, void and without any lawful authority and directed the Authority to restore such allotment.
8. We are also unable to accept the contention that the material is not sufficient to decide the issue in dispute or that controversial and intricate questions of fact are involved which can only be decided after evidence of the parties is recorded. Accordingly, the objection regarding the maintainability of this petition cannot be sustained and is over ruled.
9. ' Mr. Qazi Faez Isa, learned counsel for the petitioner submitted that the order of allotment of the plot in favour of the petitioner was proper, valid and in accordance with the Bye-Laws as the petitioner was a lawful and full-fledged member of the defunct Society, which he had obtained in his capacity as Deputy Controller, Military Accounts, Karachi in 1963 and submitted that an order passed validly and in accordance with the provisions of law and the bye-laws of the defunct Society could not be recalled or set aside on frivolous, arbitrary and base-less excuses and grounds resorted to by the respondent in this case. It was further submitted by Mr, Qazi Faez Isa that the defunct Society which was subsequently superseded by the Defence Officer Housing Authority remained silent for almost about 15 years or in other words for 15 years they did not find out that the allotment of plot was made mistakenly, illegally or in violation of the bye-laws of the defunct Society and, even if it be admitted, for the sake of argument without conceding, that any error or illegality had been committed in making allotment of the plot in dispute in favour of the petitioner, then the fact is that the allotment having remained in existence for almost fifteen years and having been acted upon has created vested rights in favour of the petitioner to continue to be the allottee of the plot in dispute and the order of allotment could not be recalled or cancelled in view of the principle of locus poententiae, according to which orders made by Government of Public functionaries in favour of the citizens which have been acted upon could not be recalled subsequently even if found to be made wrongly, illegally or in violation of some provisions and principles of law on the ground that once it had been acted upon resulting in conferment of some benefits to the citizen, then the citizen could not be deprived of the benefit which had already accrued to him or which would accrue to him on the basis of such order. In support of his above contention he placed reliance on the cases of; (i) Pakistan through Ministry of Finance v.
10. Himayatullah Farukhi, reported in PLD 1969 SC 407; and (ii) Messrs Army Welfare Sugar Mills Ltd. v.
11. Federation of Pakistan and others reported in 1992 SCM R 1652.
12. ' Mr. Nazar Muhammad, learned counsel for the respondent was unable to refute the arguments advanced by Mr. Faez Isa and to satisfy us as to the validity of the action of the respondent in cancelling the allotment made in favour of the petitioner. He reiterated that the application, dated 22-3-1974 was for admission to the membership of the defunct Society and was mistakenly considered as an application for allotment of plot and the petitioner was illegally and contrary to the bye-laws allotted the said plot and that the same being illegal was liable to be cancelled. He also referred us to proviso (i) to Article 17 of the President's Order No,7 of 1980 which empowered the respondent to cancel such allotments which were made or issued in contravention of the bye-laws of the defunct Society or the resolution of the Managing Committee. According to him the illegality in the allotment order was that the petitioner was not a member of the defunct Society and was not entitled to the allotment of a plot as the bye-laws did not permit allotment to a non-member.
13. He further submitted that alleged illegality in allotting the plot in dispute came to light when the file of the petitioner was scrutinized by the scrutiny Committee and consequently the show-cause notice was issued and as the petitioner could not satisfy the said allotment to be proper and valid the same was cancelled. He submitted that even on merits the petition was without any substance, frivolous and was liable to be dismissed.
14. ' The petitioner was admitted as a member of the defunct Society which was dissolved by Presidential Order 7 of 1980 and was superseded by the Defence Officers Housing Authority, the respondent. The petitioner was admitted to membership of the defunct Society in accordance with bye-law No,7(i) as he was performing the duties of Deputy Controller, Military Accounts, Karachi and was a civilian officer paid from the Defence Service Estimates. He was allocated Membership No,DS/N/A/1647/927. The petitioner retired from the post of Deputy Controller, Military Accounts in 1963 and vide application, dated 22-3-1974 on the prescribed form applied to the defunct Society for allotment of a commercial plot. The contention raised on behalf of the respondent is that till 22- 3-1974 the petitioner was not a member of the defunct Society and that vide application, dated 22- 3-1974 he had actually applied for being admitted to the membership of the defunct Society but on account of mistake and inadvertence by the office of the Society and the concerned officers, the petitioner was allotted a commercial plot of land measuring 200 sq.Yds. Such allotment of the commercial plot in dispute in favour of the petitioner, who according to the respondent, was not a member of the defunct Society at the relevant time was absolutely wrong, illegal and contrary to the bye-laws of the defunct Society in as much as admittedly the petitioner had ceased to be in the service as he had retired from the post of Deputy Controller of Military Accounts Karachi in accordance with the provisions of bye-law No,7 was not entitled to the mempership of the defunct Society and when this mistake came to light, a show-cause notice for cancellation of the allotment of the plot in dispute. The arguments advanced on behalf of the respondent are totally devoid of force. We ar unable to visualise as to how the application, dated 22-3-1974 could be said to be an application for appointment as member of the defunct Society as in the coloumn requiring membership number/file number, the petitioner had mentioned his membership number and had also stated that he was allotted a residential Plot bearing No,54-B, Q Street Phase-VI by the defunct Society. The allotment of a residential plot in favour of the petitioner is a very strong circumstance for holding the petitioner to be a member of the defunct Society in view of the argument advanced by. Mr. Nazar Muhammad that no person could be allotted a plot in the defunct Society unless he was a member thereof. This fact completely belies the contention raised on behalf of the respondent that on 22-3-1974 when the petitioner had submitted the application in question he was not a member of the Society and that the said application was for seeking membership of the defunct Society. Thus, the allotment of the commercial plot in favour of the petitioner conveyed to him by letter, dated 25-10-1975 was not made mistakenly or by inadvertence but was made legally in accordance with the bye-laws of the defunct Society in the balloting held for allotment of commercial plots. The allotment in respect of the said plot remained in force from 1975 till 1--12- 1994 and during this period the petitioner made payments towards the price and other dues relating to the said plot and also complied with all other requirements as and when called upon by the respondent to do so. He even had made investments over the said plot. The bye-laws of the defunct Society did not contain any provision that an eligible person once admitted to the membership would cease to be a member after retirement from service. Mr. Nazar Muhammad also failed to point out the relevant bye-law either of the defunct Society or of the respondent Authority which barred allotment of plots to retired civilian officers paid from Armed Forces Estimates after their retirement a- was claimed by the Secretary of the respondent Authority in his counter affidavit. In any case the allotment in favour of the petitioner in respect of the plot in dispute could not be cancelled on the principle of locus poenitantia as enumerated in the cases of;
(i) Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 470 and (ii) Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCM R 1652. It will be appropriate to reproduce the relevant passage from the case of Messrs Army Welfare Sugar Mills Ltd. (ibid), as under:-- "Reference may also be made to the case of Pakistan through Ministry of Finance (supra) relied upon by the High Court, in which this Court, while considering section 21 of the General Clauses Act, 1897, has held that the 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 that the principle of locus poenitentiae (the power of rescinding till a decisive step is taken) would be available. "
15. Upon the above discussion we have no doubt in our minds that order of cancellation of the allotment in favour of the petitioner in respect of the plot in dispute was in illegal exercise of power by the respondent Authority and of no legal consequence. Accordingly, we allow petition, set aside the impugned order conveyed by letter, dated 1-12-1994 and direct the respondent to restore the allotment in favour of the petitioner in respect of the plot in dispute. We award cost of the petition to the petitioner.