KHALIL-UR-REHMAN RAMDAY, J.---Civil Petition for Leave to Appeal No,1660 of 2002 filed by the Capital Development Authority through its Chairman and C.P.L.A. No,1738 of 2002 filed by the President of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad are directed against the same judgment of the Rawalpindi Bench of the Lahore High Court dated 31-7- 2002 passed in Writ Petition No,116 of 2000 and are, therefore, being disposed of together through this single order.
2. Zahid Iqbal respondent successfully participated in the auction of commercial Plot bearing No,6 Class-III in the Shopping Centre of Sector F-8/1 of Islamabad and was declared the successful bidder for the purchase of the said plot for a total consideration of Rs,32,00,000. The said respondent deposited half of the said price as per the terms and conditions of the auction while the remaining half was to be paid through four equal installments of Rs,4,00,000 each on 17-4-1996, 17-7-1996, 17-10-1996 and 17-1-1997. Two of the said four installments were paid by the respondent in time but towards the payment of the third installment, he deposited only Rs,2,00;000 instead of Rs,4,00,000 and thereafter the fourth and the last installment was also not paid by him in the prescribed time. The possession of the plot in question was, however, delivered to him on 23-12- 1996. On account of the above noticed default on the part of the respondent, a show-cause notice was issued to him on 5-6-1997 requiring him to deposit the remaining amount of Rs,6,00,000 within 15 days of the issuance of the said notice but on failure of the respondent to do the needful, the auction of the plot in question in his favour was cancelled through an order dated 4-10-1997 conveyed to him by the Director EM-II of the C.D.A.
3. Aggrieved of the said action of the petitioner C.D.A. The respondent approached the WAFAQI Mohtasib (Ombudsman) who through his declaration dated 4-4-2001 found the said action of the C.D.A. To be a case of maladministration and declared the said action to be illegal and void ab initio.
4. The petitioner C.D.A filed a representation against the said declaration of the WAFAQI MOHTASIB before the President of Pakistan as permitted by Article 32 of the Establishment of the Office of WAFAQI MOHTASIB (Ombudsman) Order No, I, 1983 which representation was accepted by the President on 24-9-2001 and this decision of the President was conveyed to the respondent through a letter dated 10-10-2001.
5. Zahid lqbal respondent questioned the said decision of the President before the Rawalpindi Bench of the Lahore High Court through the above mentioned Writ Petition No,116 of 2002 which resulted in the judgment being impugned before us as a result whereof the said order of the President had been set aside.
6. As has been noticed above, the President of Pakistan and the Capital Development Authority are now before us calling in question the said impugned judgment of the Lahore High Court./
7. The reasons which had weighed with the learned WAFAQI MOHTASIB (Ombudsman) in setting aside the cancellation of the sale of the plot in question in favour of the name of the respondent are to be found in paragraphs Nos.4 and 5 of the findings and the declaration of the learned WAFAQI MOHTASIB which are reproduced below for ready reference: "4. Final hearing was held on 22-3-2001 at which it transpired as under:
(a) The complainant was a defaulter of payment of Rs,6,00,000 when his plot was cancelled on 4- 10-1997.
(b) He made the payment of Rs,2,00,000 on account of left over balance of third installment on 16- 6-1998 which was returned to him by CDA on 18-6-1998. He again made the payment of Rs,6,00,000 on account of balance amount of third installment and full payment of 4th installment on 27-6- 1998 which was again returned to him by CDA on 1-8-1998. Finally he again made the payment of Rs,6,00,000 on 16-6-1998 and 30-6-2000. This amount was returned by CDA on 18-7-2000 as unacceptable rejecting his appeal for restoration of plot. Complainant also took the plea of discrimination by stating that allottee of Plot No,6 Allahwali Market, F-8/I was defaulter of Rs,1,50,000 but his plot was not cancelled. That person is only being asked for interest and his plot is in his possession.
(c) A perusal of C.D.A.'s noting file shows that the plot was cancelled by Member Administration who had no powers under the law or rules to cancel the plot. Power of cancellation of plot lies with Authority and not with an individual member.
(d) Request of the complainant for restoration of the plot was ordered to be examined by Chairman, C.D.A. By remarking at para. 84, 'For process and report' on 12-8-1998 i,e, a couple of months after the complainant made the payment of Rs,2,00,000 and Rs,4,00,000 respectively on 16-6-1998 and 30-6-1998. Subsequently Member Administration and Chairman, C.D.A. Ordered at paras. 93 and 94. 'Please put up Summary for the Board: i,e, for restoration of the plot of the complainant. Summary of the complainant's case was prepared by the Board according to the opinion in noting file but it was never finalized and never submitted to C.D.A. Board and therefore no orders of the Board, are available in this respect.
(e) C.D.A.'s representative wanted to rely on Gazette of Pakistan, Extraordinary dated February 17, 2000 in which rules for restoration of cancellation of plots on payment of fees at certain rates has been laid down. The complainant's plea is that his plot was cancelled only when he was to pay Rs,6,00,000 out of Rs,32,00,000. That this Rs,6,00,000 were kept by C.D.A. In their custody from 16-6- 1998/13-6-1998 and returned to him after exactly two years on 17-7-2000. He was being asked to pay to C.D.A. Approximately Rs,5,25,000 for defaulting on payment at Rs,6,00,000 for two years whereas C.D.A. Was also responsible for retaining his money for two years.
5. It is noted that this is a case of maladministration in C.D.A. Where a member illegally exercised the powers of C.D.A. Board and subsequently C.D.A. Official failed to carry out the directions of Chairman, C.D.A. To submit a summary to C.D.A. Board in respect of complainant's final payment of Rs,6,00,000 was withheld in C.D.A. For two years and a decision on his application was made after two years. The actions of various authorities of C.D.A. Are contrary to rules, unreasonable, unjust and oppressive in nature. It is therefore, held that the cancellation of the complainant's plot is illegal ab initio and he shall be deemed to be owner of the plot as if his plot had never been cancelled."
8. The communication dated 10-10-2001 through which the Law, Justice and Human Rights Division of the Government of Pakistan had conveyed the above mentioned decision of the President to the respondent is also reproduced below for ready reference: "I am directed to refer to your representation dated Nil, on the above subject and to state that the President vide his order dated 24-9-2001 has been pleased to accept the representation and set aside the findings of Wafaqi Mohtasib dated 4-4-2001. The dispute between the parties relates to contractual obligations and proper forum for such disputes is Court of Law."
9. The learned Judge in Chamber of the Lahore High Court had set aside the impugned decision of the President essentially on the ground that the said order was silent about the finding of the WAFAQI MOHTASIB regarding cancellation of the plot in question by an authority not competent to do the same i,e, Member (Administration), C. D. A.; that the said order was not in consonance with the principles outlined by this Court through a judgment reported as 1999 SCM R 2744 and finally that the said order was not a speaking order.
10. As would appear from the reproduction of the relevant portions of the findings of the learned WAFAQI MOHTASIB and those of the President as reported through the above-noticed communication dated 10-10-2001, the Ombudsman had set aside the cancellation of the auction in question essentially on the ground that the said cancellation had been made by the Member (Administration) of the C.D.A. Who had no authority under the law to do the same and therefore the said act of cancellation was an action which was coram non judice and was consequently void ab initio. The President had not found the said reason to be factually incorrect or legally untenable but had set aside the declaration of the learned Ombudsman only on the ground that the dispute related to contractual obligations and the proper forum for the resolution of the same was a Court of law.
1 1. We have heard the lengthy and thought-provoking arguments addressed by Malik Muhammad Nawaz, A.S.C. For the C.D.A. In an attempt to show that Member (Administration) was competent to cancel the sale of the plot in question, he took us through the provisions of section 2(b) and sections 4, 5 and 6 of the Capital Development Authority Ordinance XXIII of 1960 to demonstrate that the Authority meant the capital Development Authority established to carry out the purposes of the above-mentioned Ordinance; that the general direction and administration of the Authority and its affairs vested in the Board which to exercise all powers and to do all acts and things which were to be exercised or done by the Authority and that the Board consisted of not less than three members to be appointed by the Central Government which Government was then to appoint a Chairman, a Vice-Chairman and a Financial Advisor from amongst the said members. He read to us the provisions of section 51 of the said Ordinance No, XXIII of 1960 which authorized the Authority to make Regulations. In exercise of the powers under the said section 51, the Authority had made various Regulations and one such Regulation was the Islamabad Land Disposal Regulation, 1993 which envisaged cancellation of the allotments of plots, inter alia, on the ground of non-payment of dues within the specified period and which regulation envisaged filing of an appeal within three months of the passing of such an order to the Board. Para No,22 of the said Regulation of 1993 further empowered the Authority to consider requests for restoration of allotment of the cancelled plots on payment of prescribed restoration fee in addition to the delayed payment charges.
12. Another regulation made by the Authority was the Capital Development Authority (Conduct of Business) Regulation of 1985. According to para. No, 3 of the said Regulation the Authority consisted of the Chairman Secretariat, the Wings, the Directorate and other Offices shown in .Schedule I and the business of the Authority was to be distributed among the Secretariat Wings etc. In the manner set out in Schedule II of the Regulation of 1985. As per the said Schedule I the Chairman Secretariat included the Estate Management Directorate. The offices under the administrative control of Member (Administration) were the Wings relating to Personnel, Labour, Law, Municipal Administration, Medical and Health Services and Training Wing etc. And allotment, sale and cancellation of plots etc. Was not the function assigned to him. Schedule II of the said Regulation of 1985 envisaged distribution of business which talks 'of the functions to be performed by the Chairman, the Financial Advisor and the Member (Administration). The functions to be performed by the Chairman are again classified into two categories being the functions to be performed by him under .His direct supervision and the functions to be performed by him through the Member (Administration). All matters connected with the allotment, sale etc. And cancellation etc. Of plots including commercial plots fell within the list of functions to be performed by the Chairman. The obligations assigned to the Member (Administration), however, did not include the matters relating to sale etc and cancellation etc. Of plots. The learned counsel for the petitioner-Authority, then took us through an Office Order dated 9-2-1988 according to which order the Chairman of the Authority had decided that w,e,f, 1-3-1988, Estate Management Directorate was to work under the charge of Member (Administration) of the Authority. Relying upon this Office Order the learned counsel for the petitioner C.D.A. Argued that the. Member (Administration) was thus the competent authority to deal with the matters falling within the domain of the Estate Management Directorate and cancellation of plots was inter alia one of the matters to be handled by the said Directorate and that the cancellation of the plot in question had therefore been rightly handled by the said Member.
13. We have not been able to persuade ourselves to agree with the said submission of the learned counsel for the C.D.A.. As has been noticed above in some detail, it is the Authority under section 51 of Ordinance XXIII of 1960 which had powers to make Regulations to deal with the matters relating to the Authority and in exercise of the said powers, the Authority had made the Conduct of Business Regulation of 1985 according to which Regulation the Estate Management Directorate fell to the share of the Chairman. The learned counsel could not show us any authority vesting in the Chairman either under the Ordinance or under any Regulation to assign his functions either to the Members or to other officers in the Authority in derogation of the distribution of business commanded by a Regulation. In this view of the matter the above-noticed Office Order dated 29- 2-1988 issued by the Chairman allocating the business assigned to him to the Member (Administration) was an order without lawful authority.
14. Having thus surveyed and examined all the relevant provisions of the Ordinance and the relevant regulations, we find that Member Administration) was not legally competent to cancel the plot in question and the learned Ombudsman had rightly so found.
15. There is yet another aspect of the matter. As has been noticed above, the Authority and the Board have the powers to restore allotment of the cancelled plots on payment of the prescribed restoration fee in addition to the delayed payment charges. On a representation made by the respondent after he had paid the unpaid amount of sale price i,e, Rs,6,00,000, the Chairman of the C.D.A. Had directed that a summary be put up before the Board for restoration of the plot to the respondent. As per the findings of the Ombudsman such a summary was prepared but, for mysterious and unknown reasons, the same was either not put up before the Board and if so put up, the orders of the Board were not available on the file. This conduct on the part of the concerned officials smacks of malice and is indicative of some hidden hands which were operating to harm the respondent.
16. The action of the President in setting aside the findings and the declaration of the WAFAQI MOHTASIB could also not be stistained in law for more than one reason. According to Article 9 of the Establishment of the Office of the WAFAQI MOHTASIB (Ombudsman) Order being President's Order No,1 of. 1983 it is an obligation of the Mohtasib to undertake an investigation into an allegation of maladministration on the part of any Agency or any of its officers or employees. According to Article 2(2) of the said Order maladministration included an act which was contrary to law, rules or regulations. Article II of the said Order enjoined upon the Mohtasib to find out whether the complained act did or did not amount to maladministration and then to communicate his findings to the concerned Agency. No provision either of the said President's Order No, 1 of 1983 or of any other law for the time being in force took a matter out of the jurisdiction of the Mohtasib only because the same related to a contractual obligation. If as a result of the investigation conducted by the Mohtasib he came to the conclusion that the complained act was offensive of any law, rules or regulations then the Ombudsman was well within his powers to deal with the said matter in accordance with the provisions of the said Order 1 of 1983. The action of the President in setting aside the C findings and recommendations of the Mohtasib only because the matter related to a contractual dispute was thus no reason or ground justifying interference with the findings and the recommendations of the Ombudsman. As has been noticed above the learned Ombudsman had found the act of the cancellation of the sale of the plot in question to be illegal and void not on account of any matter arising out of the terms and conditions of the contract of sale or of the auction which had preceded the said sale but on the ground that the Authority which had cancelled the said sale was not authorized in law to do so.
17. Needless to add here that object of establishing the Office of WAFAQI MOHTASIB was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of any Agency. The purpose thus was to undo the administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law. Therefore, wide powers had been conferred on the Ombudsman through section 9 of President's Order No, 1 of 1983 and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Court or Tribunal etc. Of competent jurisdiction; matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan. All other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute.
18. The learned counsel appearing for the President of Pakistan in C.P. No, 1738 of 2002 has also been heard at some length who more or less adopted the submissions made by the learned counsel for the Capital Development Authority.
19. After examining all the relevant facts and the provisions of various laws we are of the opinion that no exception could be taken to the impugned judgment of the Lahore High Court and we hold accordingly. Both these petitions are, therefore, dismissed. Leave refused.