The facts forming the background of the instant Constitutional petition are that the petitioner, Lt.- General Retd. Syed Shujat Hussain, was allotted Plot No,62 by respondent No,1 Capital Development Authority, Islamabad vide letter of allotment dated 19-2-1981 in Orchard Scheme framed by the said authority. He deposited lease money of Rs,8,565 with the respondent authority on 20-4-1981.
The plot allotted to the petitioner measured 6 acres. Later on, on the request of the petitioner, Plot No,65 was allotted to him in lieu of Plot No,62 vide allotment letter dated 26-4-1981. The area of the Plot No,65 measured 11.42 acres. On account of the readjustment of the boundaries of the said plot i,e, Plot No,65 carried out by the respondent authority, the area of the plot was reduced to 8.08 acres on 14-5-1981. The possession of Plot No,65 with the readjusted boundaries as aforesaid and with the reduced area was delivered to the petitioner on 22-10-1981. Pursuant to the allotment of Plot No,65 and delivery of possession thereof to the petitioner, a formal lease deed was executed by the respondent-authority in favour of the petitioner, which was registered with the Sub- Registrar, Islamabad at Serial No,3510 in Book No,1, Volume 22 on 29-10-1981. Thus, on account of the allotment of the plot in favour of the petitioner, its delivery of possession to him and payment of the lease money and registration of the lease deed, all the formalities having been completed and nothing remaining to be done thereafter, the plot in question came to vest in the petitioner as a lessee. The respondent-authority, however, vide letter dated 22-12-1981 purported to cancel the allotment of the aforesaid plot from the name of the petitioner and also purportedly cancelled the lease agreement in favour of the petitioner. Aggrieved of the aforesaid acts of the respondent- authority, the petitioner continued representing to the authority against its aforestated acts but without any success. Thus, having failed to persuade the respondent authority to see reason and to recall its illegal orders, the petitioner instituted a complaint with the Hon'ble Wafaqi Mohtasib and impugned therein the cancellation of the allotment and the termination of the lease agreement.
The Hon'ble Wafaqi Mohtasib, in pursuance of the complaint filed by the petitioner against the respondent-authority, sent for the authority so as to meet the case as set up by the petitioner in his complaint. In pursuance of the notice issued by the Hon'ble Wafaqi Mohtasib, the respondent authority/agency entered appearance before the Hon'ble Wafaqi Mohtasib and took the following position vis-a-vis the complaint lodged by the petitioner:--
(i) that the cancelation of the allotment in favour of the petitioner was made consequent upon the cancellation of the Orchard Scheme by the President of Pakistan;
(ii) that it was not the petitioner alone the allotment in whose favour was cancelled but that all the allotments made pursuant to the said Orchard cheme were also cancelled;
(iii) that the cancellation had been ordered under the orders of the President which was based upon the following policy:---
(i) that the cancelled plots be allotted to those affectees of Islamabad who had not availed themselves of any allotment/benefit as being the affectees of Islamabad;
(ii) that the cancelled plots be allotted to retired officers;,
(iii) that neither the petitioner was an affectee of Islamabad nor was he a retired officer, therefore, he did not fall Within the purview of the parameters laid down by the policy announced by the President;
2. That the Hon'ble Wafaqi Mohtasib after thoroughly examining the complaint of the petitioner and the stand of the respondent-authority/agency, as aforestated, accepted the complaint filed by the petitioner vide his recommendations dated 25-9-1994 and directed that neither the same plot may immediately be restored to the complainant or an alternate plot at an appropriate place (place to be determined in consultation with the complainant) may immediately be allotted as per the rules and regulations prevalent at the time when the original plot was allotted to the petitioner/complainant.
3. That aggrieved of the aforesaid recommendations of the Hon'ble Wafaqi Mohtasib dated 25-9- 1994, the respondent-authority filed a representation to the President of Pakistan who accepted the same vide his order dated 4-3-1999.
4. That in the aforestated background of facts, the petitioner has instituted the instant Constitutional petition through Mr. Abdur Rashid Awan, Advocate, to call in question the orders of President of Pakistan dated 4-3-1999 whereby he accepted the representation of the respondent- authority and upheld the cancellation of allotment as ordered by the respondent-authority and to seek a direction to the respondent-authority for giving effect to the recommendations of the Hon'ble Wafaqi Mohtasib among others on the following grounds:-
(i) that the allotment in favour of the petitioner having been acted upon could not be cancelled by the respondent-authority;
(ii) that the cancellation of-the allotment of plot was not for any public purpose;
(iii) that the cancellation of the allotment of plot was mala fide;
(iv) that the well-considered recommendations of the Hon'ble Wafaqi Mohtasib could not be brushed aside by the President without giving any concrete reasons thereagainst and that, too, without affording an opportunity of hearing to the petitioner.
5. Malik Muhammad Nawaz, Advocate, appearing on behalf of the respondent-authority controverted the aforesaid submissions made for and on behalf of the petitioner by his learned counsel Mr. Abdur Rashid Awan, Advocate and supported the order of cancellation and the order of the President of Pakistan upholding the said cancellation.
6. I have considered and evaluated the respective submissions of learned counsel for the, parties, have very carefully gone through the recommendations of the Hon'ble Wafaqi Mohtasib, record placed by the respondent-authority before me and the orders of the Hon'ble President dated 4-3- 1999 accepting the representation of the respondent-authority against the aforestated recommendations of the Hon'ble Wafaqi Mohtasib and proceed to deal with the questions raised by learned counsel for the parties as under: The respondent-authority has not denied the allotment of plot in favour of the petitioner, its delivery of possession to him, receipt of the lease money and, execution of the formal registered lease deed in favour of the petitioner. Now, if these facts are admitted, these shall lead to only one result that the transaction in respect of the plot which commenced with the allotment of plot in favour of the petitioner was complete in all respects on the execution and registration of the formal lease deed and nothing remained to be done by the respondent-authority. This being so, all the decisive steps having been taken, no power was left with the respondent-authority to undo the completed transaction as the same had taken legal effect, clothing the petitioner with the rights of a lessee. For this view of the law which I take, I am fortified by the law laid down in Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 in which the Hon`ble Supreme Court has held that on the basis of principle of locus poenitentiae, the Government or other relevant authorities which are competent to pass an order are also competent to undo that order. However, the order passed and the action taken cannot be withdrawn or rescinded once it has taken legal effect and certain rights created in favour of any individual. The case of the petitioner, viewed in the light of the dictum laid down in the aforestated judgment of the Hon'ble Supreme Court, is squarely covered by the law laid down by the apex Court. The alleged cancellation could not have been ordered, as aforesaid decisive steps had been taken pursuant to the allotment and transaction had attained finality. To the same effect is the judgment reported as Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 in which the respondents who were clerks had been exempted from appearing in revenue qualifying examination and on the basis of the said exemption, they had been appointed as Assistant MukhtiarkaRs, Subsequent to their appointment as such, exemption was withdrawn by the Government. The matter went in the first instance to the Sindh Service Tribunal which decided in favour of the respondents holding that the exemption made available through the Government notification to the respondents from appearing in revenue qualifying examination and the same having been acted upon and the respondent having been appointed as Assistant Mukhtiarkar and having received the training as such, the Government could not turn around to withdraw the exemption. Feeling itself aggrieved of the decision of the Sindh Service Tribunal, the Government filed a petition for leave to appeal in the Hon'ble Supreme Court and the said Hon'ble Court reiterated the principle as laid down in Himayatullah Farookhi's case PLD 1969 SC 407 supra that an authority which has the power to pass an order has the authority to recall the order but after the order has been acted upon, the authority has no power to recall the said order. The exemption availed of by the respondents Mukhtiarkars was not permitted by the Supreme Court to be withdrawn. There is yet another judgment in support of the aforestated view of the law. It is 1997 SCM R 15 titled Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another, in which the respondent who applied to the Principal, King Edward Medical College for admission in M.B.,B.S. Class was given admission after thorough consideration of his case in the first year M.B,,B.S. Class of Rawalpindi Medical College, the fee accepted from him and the roll number allotted to him. Subsequently, the admission granted to him was cancelled on the plea that the same had been granted because of the mistake of the computer. The cancellation ordered by the relevant authorities of the admission granted to Wasif Zamir Ahmad was challenged by him in the High Court and was struck down by the High Court on the ground that all decisive steps having been taken, the college authorities were possessed of no locus poenitentiae to cancel the admission. The order of the Hon'ble. High Court striking down the cancellation of admission was challenged by the Government in the Hon'ble Supreme Court and vide the aforenoted judgment, the said Hon'ble Court held that the respondent Wasif Zamir Ahmad could not be deprived of vested right which he had earned on the basis of the act of college authorities. Principle of locus poenitentiae was although available to authorities whereby any order which was made by mistake could be undone, yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual. Applying the law as laid down in the aforestated judgments viz. (1) PLD 1969 SC 407; (2) PLD 1991 SC 973 and (3) 1991 SCM R 15, it shall be seen that the allotment of plot made by the respondent-authority in favour of the petitioner which had taken legal effect after the aforestated decisive steps taken by the parties in respect of the allotment, could not be subsequently cancelled. It is the settled law that if the basic order is without jurisdiction and without lawful authority, entire superstructure of orders built thereupon suffers from the same legal defect and infirmity from which the original order suffeRs, In the instant case, the order of cancellation of allotment of plot from the name of the petitioner being violative of the aforestated law laid down by the Hon'ble Supreme Court was wholly illegal, without jurisdiction and coram non judice. This being so, the order of the President of Pakistan made on the representation of the respondent-authority is such as cannot cure the basic defect from which the order of cancellation of CDA suffered. There is yet another angle from which the order of cancellation of allotment of plot as passed by the respondent-authority can be looked at. The order of cancellation of allotment of plot in favour of the petitioner was passed behind the back, without notice to and in the absence of the petitioner. Such a cancellation being violative of the basic principle of natural justice viz. Audi Altrem Partem which is recognised the world over cannot be upheld. The affording of an opportunity to hearing to the person affected by an order is a sine qua non for the passing of such an order. This is what has been held by the Hon'ble Supreme Court of Pakistan in Anisa Rehman's case reported as 1994 SCM R 2232 that right to be afforded an opportunity of hearing before an advance order is passed against a person shall be deemed to be written in every Statute even if there is no express provision to that effect. How could in this view of the law the respondent-authority unilaterally without notice to the petitioner, in his absence and behind his back direct the cancellation of allotment. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal treatment of law to all the citizens of Pakistan and no discrimination is permissible against anyone. Of course, as held in I.A. Sherwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCM R 1041, the Government can make reasonable classification between two groups/sets of citizens but that the said classification must be based upon some intelligible differentia. Now, applying this dictum of the Hon'ble Supreme Court as laid down in this judgment, the respondent-authority has disclosed no basis for dividing the allottees of plots of the Orchard Scheme into two groups, one of serving officers and the other of retired office Rs, There has to be some rationale, wisdom or philosophy behind such a classification. Nothing of the sort is forthcoming from the decision of the respondent-authority lying at the basis of the cancellation of allotment. The respondent-authority has also fallen back upon the plea that the cancellation of allotment of plot in favour of the petitioner was actuated by public purpose. I have gone through the comments filed by the respondent-authority to the Constitutional petition as also its written statement but have not been able to discover for myself as to what was the public purpose on the basis whereof the cancellation of allotment of plot in favour of the petitioner was made. The public purpose, it may be stated, is not something which lies hidden on the back of the imagination of a person or authority.
It should rather be declared, express and open purpose so as to stand the test of scrutiny of the Court. In the absence of any clue having been given by the respondent-authority as to the alleged public purpose, the plea based thereupon cannot be accepted as correct. The order of the President of Pakistan passed on the representation of the respondent-authority filed against the recommendations of the Hon'ble Wafaqi Mohtasib cannot be sustained in view of the law laid down in 1999 SCM R 2189 titled Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and otheRs,
7. The result is that the cancellation of allotment of plot, the refund of lease money to the petitioner and resumption of the possession of the plot tested on the touchstone of the law hereinabove discussed are inconsequential on the rights of the petitioner and the same are declared to be without lawful authority and of no legal effect. The Constitutional petition is accepted and the respondent-authority is directed to restore the possession of the plot to the petitioner forthwith and give effect to the recommendations of the Hon'ble Wafaqi Mohtasib. Parties are, however, left to bear their own costs.