The brief facts out of which present writ petition arises are that the petitioners purchased the Plot No, 16 Civic Center in Open Auction held by the respondents on 13.3.1983. The possession of the plot in-question was handed over to the petitioners by the respondents on 13.10.1983. The petitioners have to construct the building over the plot in-question till 9.5.1986 but the petitioners did not construct the building over the plot in-question and submitted an application before the respondents for extension of building period from 9.5.1986 to 9.11.1988, which was allowed by the respondents subject to payment of Rs, 127.74. The petitioners again did not construct the building over the plot in-question till 9-11-1998 and again submitted an application for second extension of building period from 10.11.1998 to 31.12.1990. The respondents granted the extension in building period upto 15.4.1994 with surcharges which was calculated Rs, 4,98,822/-. The petitioners had deposited the said amount. The petitioners have earlier. filed a Constitutional Petition No, 4063- 1992 as the LDA Authority failed to obey the order of Chairman of L.D.A. dated 10.2.1992 and following order was passed by this Court in the said writ petition in C.M. No: 1-1992 on 20.5.1992:-- Respondents-LDA shall sanction the plan, if otherwise it is according to Rules, subject to the deposit of amount of surcharge. This amount shall be refundable in case of success of the petitioners. The learned legal advisor for the LDA states that the Authority is making a reference to the Chief Minister for further consideration of the matter. The admission of the petition would not be a bar in the way of the LDA to seek further consideration and for the Honourable Chief Minister to pass appropriate order that he may deem fit to pass in the matte''.
The Chief Minister had passed the order on 21.12.1992, wherein the case was decided against the petitioners. The petitioners being aggrieved filed this Constitutional petition.
2. The learned counsel of the petitioners submits that the Chief Minister/Chairman of LDA had passed the order in favour of the petitioners on 10.2.1992. The petitioners have accrued vested rights, therefore, the Chief Minister/Chairman of LDA has no lawful authority to review his earlier order. He further submits that impugned order is hit by principle of natural justice and is also hit by Article 25 of the Constitution as is evident from the contents of the order of the Chief Minister/Chairman of LDA dated 21.12.1992. He further submits that the Chief Minister/Chairmian of LDA has no power to review his earlier order in terms of provisions of LDA Act, 1975.
3. The learned legal advisor of the respondents (LDA) submits that the petitioners have filed a Constitutional Petition No, 4063-92 in which the respondents had submitted reply and taken stand that the matter be referred back to the Chief Minister/Chairman. of LDA for further consideration.
The Chief Minister/Chairrnan of LDA considered the case subsequently and passed the impugned order. He further Submits that the petitioners have not challenged the vires of order of this Court dated 20.5.1992, therefore, the contention raised by the learned counsel of the petitioners,. has no force. He further submits that the petitioners have already deposited the surcharges and the petitioners have filed this writ petition with the prayer that the said amount be refunded to the petitioners, therefore, the Constitutional petition is not maintainable. He further submits that the petitioners have already sold the plot in-question to a third party. He further submits that the impugned order is valid in the eyes of law. He further. submits that the Chief Minister/Chairman of LDA is competent to pass the impugned order, which is inconsonance with the policy of the respondents. He further submits that the petitioners were provided various opportunities and repeatedly extended the period for constructions of building over the plot in-question but the petitioners did not avail the same, therefore, the petitioners did not approach this Court with clean hands.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is the duty and obligation .of the Director General of LDA to refer the case to the Chief Minister/Chairman of LDA, which is inconsonance with the law laid down by the Honourable Supreme Court in "Zahie khtar vs. Government of Punjab, etc." (PLD 1995 S.C. 530). The relevant. observation is as follow:-- "A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer-Under Secretaries and other officers of equivalent rank within the department is to be done. by the Secretary of that Department. Rule 21 of the Rule of Business, which deals with power of posting promotion and transfer of Government Servants does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government Servant, at a Station, according to the above referred policy decision of the Government, is three years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of the Government, a transfer before expiry of three years' period becomes necessary in the opinion of the competent Authority.
The transfer of orders in the present case, therefore, could' neither be justified on the plane of policy directive of Government referred to above nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rule of Business, ibid. We are in no doubt that if the transfer orders; in the case before us would have been made in accordance with policy directives of the Government .referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rule of Business, ibid, there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of the policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid were not followed strictly, opened the door for the Government Servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary LG & RD, either resisted these unethical and undesirable moves of his subordinates noor he pointed out to the Honourable Minister Incharge, that the transfer orders made by him from time to time in respect of various officers of his Department were neither in confirmity with the declared policy of Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rule of Business, ibid. It was the duty of the Secretary LG & RD to have pointed out to the Minister concerned the extent of his authority in such matters besides bringing to his notice that such frequent transfers of a Government Servant could .either be justified as the exigencies of service nor it could be described in the public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of head of a Government Department is not expected to promote discipline or efficiency in the Department. On 'the contrary such attitude may have a demoralizing effect on his subordinates encouraging them to seek intervention and favours of outside agencies, which may ultimately adversely effect the over-all disipline and efficiency in the Department. We, therefore, expect that the guidelines mentioned in the policy directive of the Government referred to above and the provisions of Rule 21 of the Rules 01 the Business ibid, will be kept in view by all concerned while dealing with the transfers of Government Servants. The office is directed to send the copy of this Judgment to the Government of the Punjab for circulating it to all its Department, for future guidance. With these observations, the petition stands dismissed as not maintainable.
'The order of the Chief Minister/Chairman of LDA was not accepted by the D.G. LDA as the same was not in accordance with the policy of the respondents and has referred the matter back to the Chief Miniker/Chairman of LDA, therefore, no vested right accrued to the petitioners as the impugned order was not implemented and the principle of locus poenitentiae is not attracted in the present case, as per principle laid 'down by the Honourable Supreme Court in "Jalal-ud-Din's case" (PLD 1992 S.C. 207). It is also settled principle of law that the Constitutional jurisdiction is discretionary in a character, he who seeks equity, must come the Court with clean hands. The respondents have granted three extensions to the petitioners but the. petitioners did not avail the same, herefore, the petitioners did not approac't this Court with clean hands. In his view of the matter, I am not inclined to exercise my discretion in favour of the petitioners, as per principle laid down trythe Honourable Supreme Court in the following judgments:-- "Nawab Syed Raunaq Ali vs. Chief Settlement Committee". (PLD 1973 S.C. 236). "Rana Muhammad Arshad vs. Addl. Commissioner, etc." (1998 S.C.M.R 1462) It is settled principle of law that each and every case is to he decided on its own peculiar circumstances and facts. The contention of the learned counsel of the petitioners has no force in view of special circumstances and facts of this case. As mentioned above, the petitioner did not avail extension period. to construct the building over the plot in-question. The learned counsel of the petitioners has failed to bring on record sufficient material to show that the impugned order of the respondents is hit by Article 25 of the Constitution. It is also settled principle of law that the parties are bound by their pleadings, as per principle laid down by the Honourable Supreme Court in "Mst. Murad Begum, etc. Muhammad Rafiq, etc. "(PLD 1974 S.C. Supr. 322). It is settled principle of law that the general allegation of malice is not maintainable in the eyes of law as per principle laid down by the Honourable eme Court in "Saeed Ahmad's case (PLD 1974 S.C. 151) and "Aman-ullah's case" (PLD 1999 S.C. 1092) In view of what has been discussed above, this writ petition has no merit the same is dismissed.