' Through this Constitutional petition the petitioner seeks a declaration that the refusal of respondents Nos.3 to 5 in not issuing allotment order and possession slip to the petitioner in respect of Plot No,62/X measuring 10 Marlas to be absolutely illegal, unwarranted, unjustified, based on mala tide, arbitrary, without lawful authority, ineffective against the rights or the petitioner and without any legal justification.
2. Briefly stated the facts of the case are that the Housing and Physical Planning Department of respondent No,1 developed three residential Schemes Nos.I,II,III for Sahiwal Chichawatnie and Arifwala respectively known as AREA DEVELOPMENT SCHEME for allotment of various reserved plots of different categories through balloting of lots. One Plot No,62/X measuring 10 Marlas was reserved for allotment to the Industrial' Labourer in the Sahiwal Scheme No,I and that the respondent No,3 invited applications from the desirous persons for the allotment of different plots reserved for different categories through draw of lots through the Daily. "Jang", dated 6-12-1991 and that the petitioner being an Industrial Labourer also applied along with necessary documents and requisite fee for the allotment of only Plot No,62/X measuring 10 Marlas out of Labour Quota and all the applications were thoroughly examined by the Department and petitioner's application was found in order in all respects and was consequently accepted for balloting and objections to these applications were also invited through the newspaper, dated 23-2-1992 and none objected against the acceptance of petitioner's application and that alter completing all necessary formalities, the Allotment Committee conducted the balloting of lots on 10-3-1992 and luckily ballot of Plot No,62/X measuring 10 Marlas fell to the name of petitioner through draw and result of the successful applicants of other plots including the petitioner was displayed on the Notice Board on 11-3-1992 by the respondent No,3 in its office and that after completing the necessary formalities the Respondent No,4 submitted the balloting proceedings to the Government of Punjab for necessary approval and the Government of The Punjab was pleased to accord final approval vide its Letter No, S.O. (D.XXX) 24-22 of 1992, dated 3-9-1992 and that the respondent No,3 issued allotment orders to all the successful applicants and when the petitioner approached the respondent No,3 for the issuance of allotment order and possession slip being successful in draw, but the respondent No,3 refused to issue the allotment order and possession slip to the petitioner without any valid reason and ultimately the petitioner was constrained to send a legal notice on 5-12-1992 through counsel to respondent No,3 in this respect and that the respondent No,3 gave reply to the notice under No,2122, dated 13-12-1992 in which it was disclosed that the petitioner could not be issued allotment order and possession slip because of an order of status quo passed by Civil Court in a civil suit titled Muhammad Nisar v. Province of Punjab and others wherein the respondent No,3 was a party as defendant and that the petitioner inquired from the concerned Court from where the petitioner came to know that a declaratory suit in respect of plot in question has been filed by Muhammad Nisar son of Rashid Ahmad against all the respondents and that the petitioner submitted an application before the learned Civil Judge, Sahiwal under Order 1, Rule 10, C.P.C. For impleading him as defendant as the petitioner is a necessary party because the plot in question has been allotted to the petitioner and the petitioner is lawfuly allottee of that plot and the learned Civil Judge, accepted the application of the petitioner and he was arrayed as defendant in the said suit and that the learned Civil Judge in view of acceptance of application ordered the plaintiff Muhammad Nasir, to file amended plaint who filed the amended plaint in which the petitioner was arrayed as defendant No,5 and that the respondents Nos.1 and 3 also filed joint written statement in which it was clearly admitted that the plot in question has been allotted to the petitioner through draw and he is regular allottee of the plot and denied the averments of Muhammad Nasir and that the petitioner also filed written statement and that the learned Civil Judge after recording evidence of both the parties decreed the suit of Muhammad Nasir vide judgment and decree, dated 11-10- 1995-and that the petitioner and respondents Nos.1 and 3 preferred their respective appeals before the learned District Judge, Sahiwal against the aforejaid- judgment and decree and that during the pendency of the said appeals, Muhammad Nasir and respondent in the appeals made a' statement on 30-10-1997 to the effect that he has no objection if the appeal of the petitioner and respondents Nos.1 and 3 are accepted and consequently the appeals of petitioner and Respondents Nos.1 and 3 were accepted vide judgment and decree, dated 30-10-1997 and that on 2-3- 1998 the petitioners submitted an application to Respondent No,3 for the issuance of allotment order and possession slip in respect of Plot No,62, as the appeal of the petitioner as well as Province of Punjab and the Department have been accepted and the judgment and decree of the lower Court automatically stood set aside and original position existing before the filing of the suit has been restored meaning thereby that the allotment of plot in question stood intact in favour of petitioner but no response has been given to the petitioner so far and that the petitioner submitted another application to the respondent No,4 in this behalf, who was pleased to call for report from the respondent No,3 on 7-.7-1998 and that since then, the petitioner has been running from pillar to post, in order to get allotment order and possession slip from the respondents Nos.3 and 4 but all his efforts have ended in smoke and that the respondents have not even bothered to give reply to the petitioner rather, the petitioner has been verbally told by respondent No,3 that the petitioner could not be issued allotment order and possession slip in respect of plot in question because of change in Policy by the Government of Punjab as indicated in Letter Nos.DG HMSN- 3/SWL-196 of 1998/2229, dated 26-91998 and that refusal on the part of respondents Nos.3 and 5 in not . Issuing allotment order and possession slip in respect of plot in question is absolutely, unwarranted, unjustified illegal, arbitrary, mala fide, without any legal justification and lawful excuse and ineffective qua the rights of the petitioner.
3. The learned counsel for the petitioner submitted that the respondents Nos.3 to 5 have acted illegally and without lawful authority. In refusing to issue allotment order and possession slip to the petitioner who is regular ailottee and the petitioner is legally entitled to the issuance of allotment order and possession slip in his favour and that it is pertinent to mention here that subsequent change in policy does not affect the rights of the petitioner which have already accrued to him and the rule of locus poenitentiae comes in play in favour of petitioner and that the act of the respondents Nos.3 to 5 in refusing to issue allotment order and possession slip is based on mala tide, without lawful authority, and that it is pertinent to mention here that the respondents Nos.1, 3 and 4 have clearly admitted the petitioner to be successful allottee of the plot in question and now the respondents could not go hack upon their commitment owing to change in policy and that the subsequent change in policy does .Not have retrospective effect upon the rights of petitioner and that the respondents have been making the petitioner to belie that he is the lawful and bona tide allottee of the plot and now they are estopped by their words and conduct to assert otherwise and that the respondent No,3 is bound to issue allotment order and possession slip to the petitioner being legally entitled to get the same, as all other successful applicants have already been issued allotment order and possession slip and that the respondent No,3 has time and again been requested to issue allotment order but they are adamant not to accede to the requests of the petitioner and that there is no efficacious and speedy remedy available to the petitioner except to invoke the extra-Constitutional jurisdiction of this Court.
4. On the other hand, the learned Assistant Advocate-General submitted that it is admitted to the extent that Housing and Physical Planning Department developed three residential Schemes No,1, II, HI for Sahiwal, Chichawatni and Arifwala respectively for allotment of various reserved quota, including labour quota, plots of different categories through balloting of plots and that the petitioner applied for the 10 Marlas plot out of Labour quota, not for the particular plot and that the respondent No,3 issued allotment orders to the successful ballot holders except the petitioner and that the petitioner was informed by the respondent No,3 vide memo. No,2122, dated 13-12-1992 in which it was stated that the petitioner could not be issued allotment order because of an order of status quo passed by Civil Court in a suit tiled by Muhammad Nasir against the Province of Punjab and others. Lt is further submitted that the petitioner submitted an application for issuance of allotment orders but as per policy, the respondent No,3 forwarded the application alongwith relevant documents to the higher office for seeking advice and further necessary action and as per policy the matter was sent to the higher office and the Director-General, Housing and Physical Planning Department, Lahore intimated vide his Memo. No,DG-HMS-A3/SWL/196 of 1998-2229, dated 26-8-1998 that as per direction of the Government contained in Memo. No, S.O. (D-Ill) 24-17- 1995 (P.), dated 58-1998, the request of Mr. Muhammad Ayub for the allotment of the Plot No,62/X A.D. S. No,1, Sahiwal (Labour quota) cannot be acceded to as per policy of 1993, where by all the quotas has since been abolished/discontinued and the remaining/available plots are to be disposed of through an open auction.
5. The respondent No,5 also submitted comments which areas under:--- "A complaint filed by one Muhammad Nasir was received by this office during March, 1996 that the plot, had been allotted to the petitioner with mala tide intention without having legal entitlement for the same, as per policy and the said complaint was examined by Director, H & PP Circle, Multan and Deputy Director, H&PP Division, Sahiwal and a detailed report was submitted to this office during July, 1996 that the allotment in the name of the petitioner was in violation of Government's instruction No, DG-HMS-A-lV/110- 5/1251, dated 25-2-1988 as the plot measuring 10 Marlas could not be allotted under the Labour Quota and it was reported subsequently by the lower formation that the complainant Mian Muhammad Nasir had filed a civil suit against the petitioner and the matter therefore, became sub judice and the petitioner after obtaining decision from the District Judge, Sahiwal in his favour. Approached for issuance of allotment letter during 1997. In the meantime all the quotas were abolished by allotment policy of 25-10-1993. This office made a detailed reference to the Government of Punjab in HUD & PHE Department on 26-6-1998. It was decided that the request of the petitioner for issuance of allotment letter was not covered under the policy, in vague. No allotment could be made after issuance of allotment policy of 25-10-1993 according to said policy, the plots could be disposed of through open auction. The request of the petitioner for issuance of allotment letter was, therefore, not tenable, hence, rejected by the competent authority."
6. I have given due consideration to the valuable arguments on both sides.
7. There would have been force in the arguments of the respondents had the application, for the allotment of the plot by the petitioner would have been made, objections raised and decided, balloting conducted., successfully candidate names displayed on the Notice Board and the necessary approval for the Government accorded and allotment orders to the persons who were in the same position as the petitioner was at the relevant date, after the announcement of the new allotment policy, of 25-10-1993. It is not the case in the matter of the petitioner, as such, he is entitled for the allotment of the plot as his case along with other had gone through the whole process one year and 24 days before the new policy.
8. For the above reasons, the writ petition is allowed and the respondents are directed to issue allotment order and possession slip in respect of Plot No,62/X measuring 10 Marlas located in Area Development Scheme, Sahiwal Scheme No,l after receipt of the necessary dues, to the petitioner.