TALLAT QAYYUM QURESHI, J.---Through writ petition in hand, the petitioner, Chaudhry Abdul Rauf Mithu, Managing Driector M/s. Kareegar Furnishers, Private Limited has challenged letter No.SDA/PM/HIE/Allot/676/79, dated 10-2-1994 being illegal, unlawful and of no legal effect, whereby plots bearing Nos. 30-32 measuring 12.5 Acres situated at Hattar Industrial Estate, Haripur allotted to M/s. Kareegar Furnishers Private Limited were cancelled. A direction has also been sought that the petitioner be charged with the same rates as have been charged from respondent No.4 and the excess amount received from the petitioner be returned to him.
2. In response to the notices issued by this Court to respondents.Barrister Jehanzeb Rahim entered appearance on behalf of respondents Nos.1, 2 and 5 and vehemently contested the writ petition.
Since hearing of the writ petition had been adjourned many times due to pre-occupation of the learned counsel for the petitioner, therefore, this Court directed the parties to furnish written arguments, which were submitted.
3. The learned counsel for the petitioner had laid great emphasis upon the discrimination exercised by respondents in charging different lease amounts in the same industrial estate. The petitioner applied for allotment of 3 industrial plots to set up 3 industrial units, but was allotted only one industrial plot measuring about 10 acres vide letter dated 23-4-1985 in phase II of Hattar Industrial Estate Haripur at the rate of Rs.1,70,000 per Acre for levelled land. Later on he was allotted land measuring 7 Acres vide letter, dated 6-11-1985. The un-levelled land was estimated at the rate of Rs.24,000 per Acre. At the time of the aforesaid allotment neither electricity was available nor water was supplied and the petitioner had to arrange the same at his own expenses. Subsequently the petitioner came to know that respondent No.2 had allotted land measuring 140 Acres to respondent No.4 (M/s/Dewan Salman Fibre Ltd) in Phase IV of their Scheme vide allotment letter dated 20-1-1990 at the rate of Rs.14,530.50 per Acre only for the levelled land. At the time of said allotment respondent No.4, all the basic facilities i.e. Electricity, water and roads etc., were available, therefore, the petitioner was discriminated in charging such higher prices than respondent No.4.
4. It was also stressed that the cancellation of plots allotted to the petitioner vide letter; dated 10-2- 1994 was also unlawful, illegal and of no legal effect in that the petitioner was not defaulter for payment of dues to S.D.A., but was entitled to receive back the excess amount paid to S.D.A.
5. On the other hand it was contended that the petitioner has not been discriminated. Respondent No. 4 was leased land for setting up Polyester Staple Fibre Manufacturing Complex with the collaboration of C. Itoh, Japan at Hattar. Industrial Estate for manufacturing staple fibre and fabric and the Provincial Government welcomed the said Group in order to fetch high technology and basic raw material industry in N.W.F.P. The respondents acquired 200 Acres of land on self- purchased and self-development basis for the Group at a distance of 3/4 Kilo Metres from petitioner's plot without infrastructure facilities because individual/Company could not acquire land under the Land Acquisition Act. The price of the land was paid directly to Land Acquisition Collector by the Group and the Group had undertaken that in case of enhancement of cost of land by the Courts; the enhanced amount shall be paid by the Group. Therefore, no discrimination has been made by respondents with the petitioner.
6. While repelling the arguments about the cancellation of plots vide letter, dated 10-2-1994 it was stated in the written arguments that the petitioner did not pay the arrears of allotment of land, additional allotment of land, development charges, water charges and other dues. He also did not set up industrial units i.e. Furniture, Carpet or Specialized Textile or even to get the approval of the plans/drawing of proposed construction in accordance with the terms and conditions of grant. The petitioner had only constructed a shed covering 6% of the allotted area for a small ordinary Furniture unit which was later on closed and the remaining area was used for plantation. The respondents started serving notices to petitioner from January, 1986, till cancellation of lease covenant, but the petitioner failed to perform his contractual obligations and to clear the outstanding dues despite the fact that in every notice specific time period was provided with warning that should the outstanding dues were not cleared, the lease of the land would be cancelled, but the petitioner paid no need to the notices: Ultimately, the respondents were not left with any choice but to cancel the lease agreement after giving show cause notice to the petitioner for cancellation.
7. It was also stated that the writ petition was not maintainable because the petitioner wanted to enforce the contractual obligations through writ petition in hand, which he could not do and the Constitutional jurisdiction can neither be used as a substitute for a civil suit for settlement of disputed questions of facts and controversial documents referred in petition nor for the enforcement of contractual rights and obligations emanating from .a contract.
8. We have heard the learned counsel for the parties, gone through the written arguments submitted by them and carefully perused the record.
9. In order to promote and accelerate industrial activities in N.W.F.P. Sarhad Development Authority was set up by the Provincial Government, for establishment of industrial estate in the backward area of N.W.F.P., Hattar industrial area project was launched by Sachad Development Authority in 1985. The petitioner applied for allotment of 3 Industrial plots to set up 3 Industrial Units i.e. Furniture, Carpets and Specialized Textile Manufacturing. The piece and parcel of land measuring 10 Acres in'
Phase-II was allotted to the petitioner vide letter No. SPA/PM/HIE/Allot-03/303-304 'dated 23-4-1985 issued by respondent No. 2. Later on further land measuring 7 Acres was allotted vide letter No. SDA/PM/HIE/Allot/30-32 dated 6-11-1985 on petitioner's request. The land allotted to the petitioner was measured by a Committee alongwith Project Manager and site plan was prepared. Out of 12.50 Acres 5.62 Acres land was assessed as levelled and remaining 6.87 Acres was assessed as unlevelled land. The levelled land was assessed per Acre at the rate of Rs. 1,70,000 and unlevelled land at the rate of Rs. 24,000 per Acre. Since the petitioner was found in possession of excess land, therefore, he was subsequently allotted the same on 21-8-1990. The petitioner executed lease deed No. 212, Book No. 1, Volume No. 218 dated 18-2-1987 in respect of land measuring 7 Acres for 99 years with effect from 6-11-1985 with the following stipulation regarding mode of payment:-- "MODE OF PAYMENT.
(1) Cost of plot on cash basic. Rs. 1,70,000 per acre.
(2) Cost of plot on 5 years deferred payment ... .... ... ... ... ... ... .. ... ... ... ... ... ... ... .. .. .. ...Rs.2,50,000 per acre.
(a) Down payment ... ... ... ... .... ... ...Rs. 60,000 per acre (b)Half yearly Ten (10) equal instalments Five yeaRs. .---..Rs. 19,000 per acre.
(The above are subject to variation due to actual conditions.
RENDERING THEREFORE During the said term of the lease, the lease amount is fixed to (sic) Rs.
17,50,000 (Rs. Seventeen lacs Fifty thousand) only and shall pay down payment at the time of allotment amounting to Rs. 4,20,000 (Rs. Four lacs Twenty thousand) only and for the remaining terms , of the lease shall pay in Ten equal half yearly payment, payable, to the lessor half yearly each in advance at the rate of Rs. 1,33,000 (Rs. One lac thirty three thousand) from the date of allotment (subject to amendment in rates of rent as prescribed by the Government from time to time) and shall also pay half yearly recurring expenditure. The amount thus payable to the lessor will be without previous demand and without any deduction whatever and without prejudice to the lessor's right to determine this lease and of its right of re-entry upon the demised land and such other rights and remedies as may be open to the lessor including interest at 14.72% per annum leviable on all rents not so paid within the due dates. The annual recurring expenditure will be determined from time to time by a Committee or Board to be nominated by the lessor."
The petitioner only deposited Rs. 7,10,000 and thereafter did not pay the remaining amount as per lease deed mentioned above. After taking over the possession of the land, the petitioner constructed a shed for installation of Furniture Industry but did not instal other two projects for which the plots were leased to him.
10. It was somewhere in the year 1990 that the petitioner came to know that respondent No. 2 had allotted land measuring 140 Acrss to respondent No. 4 in Phase IV at the rate of Rs. 14,530.50 per Acre for levelled land. He approached to respondents Nos. l and 2 with the request that he should also be charged with the same rate i.e. At Rs. 14,530.50 per Acre and after deducting the price of land allotted to him at the said rate, the excess amount paid by him be refunded to him, but instead of paying any heed to his request for reduction of price, they directed him to make the payment; as agreed by him at the time of allotment of plots to him. He was also directed to pay the interest and development charges and on his violation to make the payment, the plots allotted to him were cancelled.
11. The main question for determination in this case is as to whether the petitioner was discriminated or not. The answer of this proposition is in negative, firstly, because the petitioner is not similarly placed with respondent No. 4, who was allotted land at a distance of 3/4 Kilometres from the petitioner's plot on self-purchase and self-development basis.
Secondly, the Government has acquired land for respondent No. 4 for fetching high technology and basic raw material Industry' in N.W.F.P. And respondent No. 4 has established (Polyester Staple Fibre Manufacturing Complex) with the collaboration of C.Itoh, Japan at the Industrial Estate Hattar for manufacturing staple fibre and Fabric.
Thirdly, the land was allotted to respondent No. 4 on acquisition price without any infrastructure facilities with conditions that should the Courts increase the price of acquired land, the respondent shall pay the increased price to landowners and recently a Division Bench of this Court of which I was a Member and have penned down the judgment has enhanced the acquisition price by Rs.
1000 per Acre which respondent No. 4 is liable to pay.
12. On the contrary the petitioner was allotted land in Phase-II though he had agreed to pay price at the rate of Rs:1,70,000 per Acre at the time of allotment as well as at the time of execution of lease deed by him in favour of the respondent No.1 but still he was given special concession for the land which was unlevelled and was directed to pay at the rate of Rs. 24,000 per Acre for land measuring 6.87 Acres (unlevelled). He was in possession of excess area which was allotted to him on 16-8-1990 though he enjoyed the possession of the excess land from the year 1985 but he was not charged for the period commencing from 1985 till 16-8-1990. The petitioner has not brought any technology and has even failed to establish 3 units for which the land was allotted to him. He has only utilised 6% of the total land by constructing a shed for ordinary Furniture Unit and has even failed to get the site plan approved from the competent authority for establishment of other 2 units namely Carpet and Specialized Textile. He has even failed to pay the price and development charges for the land allotted to him. In Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary,' Ministry of Health, Government of Pakistan, Islamabad and another (2000 SCM R 1956), it was held:-- "the equality should not be in terms of mathematical calculation and exactness. It must be amongst the equal. The equality has to be between the person who are placed in the same set of circumstances. (1991 CLC 13 (D.B.)). The phrase equal protection of law' envisages in Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property, or pursuit of happiness Persons similarly situated or in similar circumstances are to be treated in the same manner". (1990 CLC 136). It is well-settled by now that "the conception of equality before the law does not involve the idea of absolute equality among human being which is a physical impossibility. (PLD 1980 Quetta 10 + PLJ 1979 Quetta 246 (D.B.) + AIR 1951 Nag. 58 + ILR 1951 Nag. 646 (F.B.)). Article of the Constitution of Islamic Republic of Pakistan guarantees a similarityof treatment and not identical treatment."
We are therefore, of the view that the petitioner has not been discriminated.
13. So far as the argument of the learned counsel for the petitioner that cancellation of the plots allotted to him vide letter, dated 2-10-1994 is unlawful, illegal and of no legal effect is concerned, the same has force in it The petitioner, as mentioned above, was allotted land measuring 10 Acres vide letter, dated 23-4-1985, land measuring 7 Acres vide letter dated 6-11-1985 and excess area in his possession was allotted to him vide letter dated 21-8-1990. He executed lease deed No. 212 dated 18-2-1987 in favour of respondent in respect of land measuring 7 Acres, whereby he undertook to pay the price of allotted land as per mode prescribed in the deed. He deposited Rs.
7,10,000 (date of much deposit has not been mentioned by the parties). In the year 1990 petitioner came to know that respondent No. 2 allotted land measuring 140 Acres to respondent No. 4 in Phase IV at the rate of Rs. 14530.50 per acres :or the levelled land. He immediately approached respondents 1 and 2 with the request that he should also be charged with the same rate i.e. Rs.
14530.50 per acre and after deducting the price of the land allotted to him at the said rate the excess amount paid by him be refunded. In this regard he approached the higher 'authorities also, hold Press Conferences and made appeals through various means but none paid any heed to his request and in retaliation to the present demand of the petitioner for treating him at par with respondent No. 4 and to charge at the same rate for which respondent No. 4 has been charged.
Respondent No. 2 vide letter, dated 2-10-1994 cancelled the allotment of land of petitioner though respondent No. 2 was not competent to cancel the same.
14. So far as the non-payment of the dues by the petitioner is concerned, the petitioner from very beginning has taken the stand that he is liable to pay the price of the land allotted to him at the rate of Rs. 14530.50 and that he has already paid Rs. 7,10,000 which is mere than the amount which he was obliged to pay. Respondent No. 2 has worked out the following dues allegedly outstanding against the petitioner as on 18-8-2000:--
(1) Lease Money Rs.4,10,520.00
(2) Interest Rs.10,79,148.00
(3) Development charges. Rs.3,63,356.00 Total Rs.18,53,024.00
15. We have in the preceding paragraph held that the petitioner has not been discriminated and since the petitioner had at the time of allotment of land and at the time of execution of lease deed had agreed to pay the price of land/leaase money at the rate of Rs. 1,70,000 per acre for levelled land and the rate of Rs. 24,000 per acre for the unlevelled land, therefore, we hold that the petitioner is liable to pay the remaining lease amount of Rs. 4,10,520 to respondent No.1 alongwith development charges amounting to Rs. 3,63,356. So far as the amount of interest is concerned, it has not been made clear as to at which rate the interest has been calculated. Moreover, we are of the view, the petitioner is not liable to pay the amount of interest for the reasons firstly, that payment of interest has been declared as un-Islamic by Honourable Shariat Appellate Bench of Supreme Court of Pakistan, secondly, the writ petition filed by the petitioner is pending since 1994 in this Court and he cannot be penalised for the period for which his petition was pending decision, thirdly, respondent No. 2 has failed to show as to at which rate and for which period an amount of Rs. 10,79,148 has been calculated. The cancellation of plots leased to the petitioner vide letter, dated 2-10-1994, therefore, without lawful authority and illegal. '
16. The argument of the learned counsel for the respondents 1, 2 and 5 that the petitioner wants to enforce contractual obligations through writ petition in hand has no force. The petitioner through this writ petition has challenged the validity of letter, dated 2-10-1994. The cancellation of the said plots by Sarhad Development Authority pertains to the performance of statutory obligation and functions of the respondents 1, 2 and 5 and therefore, susceptible to exercise of writ jurisdiction by this Court. In this regard reliance is placed on Pakistan Medical Association Karachi v. Government of Sindh and 5 others (1979 CLC 382) and Haji Noor Muhammad and another v. K.D.A. And others (PLD 1975 Karachi 373).
17. Likewise when a State functionary enters into a contract with a private citizen/Ltd. Company, any serious contravention of the Rules or instructions are amenable to the writ jurisdiction of this Court.
A similar question arose in Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lahore 733), wherein it was held that:-- "The action of a State functionary entering into an ordinary contract with a party in any matter concerning the Government is different from entering into a contract through the process of tenders.The basic concept of financial dealing in the latter case is different from the former, any serious contravention of the rules/instructions in the latter case might set at naught the entire concept. When rights are involved, such contravention may not be accepted as a lawful act or as falling within the discretion of `the State functionary; as it would lead to most serious consequences both legal and factual. The functionaries would be well-advised in their own interest not to-- contravene the rules and instructions which have been laid down with care to safeguard the interests of the State (Public exchequer) and the citizens including the dealing parties. In proper competently instituted proceedings, the Court will not hesitate to interfere particularly if in addition to the contravention of the above type, there is allegation of mala fides! And in the latter case, it may be neither unlawful nor improper for the Court, while interfering for the purpose of correcting the error, to further direct that the loss suffered by the public exchequer and/or by a citizen be compensated personally by the defaulting public functionaries."
We, therefore, hold that matter before this Court purely and simply pertains to the cancellation of allotment of plots Nos. 30 and 32 vide letter dated 2-10-1994 and the petitioner does not want to enforce the contractual obligation through writ petition in hand, therefore, the writ petition is maintainable.
The outcome of the above discussion is that the petitioner has not been discriminated by respondents Nos. l and 2. The cancellation of lease of land allotted to the petitioner vide letter, dated 2-10-1994 is without lawful authority, illegal and of no legal effect. The lease/allotment of the plots is restored with the direction to the petitioner that he shall deposit Rs. 7,73,8761 Rs. 4,10,520 for lease money and Rs. 3,63,356 for development charges) within a period of four months from the date of announcement of this judgment failing which the cancellation order, dated 2-10-1994 shall hold the field. The writ petition is partially allowed in the above terms with no orders as to costs.