' The dispute relates to the allotment of Plot No,1-B by the Capital Development Authority, petitioner herein, in favour of Sh. Muhammad Hanif, respondent.
2. Plot No,8-B, in Fruit and Vegetable Market, Sector 1-11/4 was allotted to respondent Sh.
Muhammad Hanif by the C.D.A. In the year 1983. The same was not available having already been allotted to some one else. The mistake was realized by the C.D.A. When after depositing the amount of the plot by Sh. Muhammad Hanif the possession was going to be handed over to him, and it transpired that the plot had already been transferred in favour of somebody else. Since the respondent had already deposited the total amount for Plot No,8-B, therefore, he was offered another Plot No,13-B, which was not accepted. Some other alternative plots were considered on the request of the respondent but the same were not found actually available at the site. The respondent requested for allotment of plot in dispute, i,e, No,1-B but the C.D.A. Took the stand that the same is reserved for construction of a Post Office. After some time, the same Plot No,1-B was put to auction, which compelled the respondent to bring a suit for declaration and mandatory injunction to the effect that the order/act of the C.D.A. To put the plot in dispute (Plot No,1-B)
(Commercial) to open auction is incorrect, based on mala fides and void ab initio as the plaintiff- respondent is entitled to be allotted the plot in dispute (1-B) in Sector I-11/4, Vegetable Market, Islamabad as of right and for issuance of a direction to the C.D.A. To allot the said plot to the respondent-plaintiff. A decree for permanent injunction was also sought restraining the petitioner- C.D.A. Not to put the plot in dispute to open auction.
3. The suit was resisted by the petitioner. It was contended in the written reply that the respondent- plaintiff had no cause of action, that he had not come to the Court with clean hands, that he was estopped to file the suit as in the year 1983 he was allotted Plot No,8-B in Sector 1-11/4 and that he paid the amount for the above-stated plot but in the year 1986 it transpired that Plot No,8-B was already allotted to Abdul Rauf and Umar Farooq by the C.D.A. And the allotment has been made erroneously in favour of the respondent; the respondent lodged a complaint with F.I.A., which took the record of the plot into its possession and that the respondent applied for allotment of Plot No,1- B and it was agreed by the C.D.A. But the allotment could not be made due to non-availability of the file and pendency of the case. The respondent was offered Plot No,300 measuring 50 x 20' (100 sq. Yards).
4. From the divergent pleadings of the parties, following issues were framed by th e learned Civil Judge, Islamabad:--
(1) Whether the suit is not proceed able in view of objection No,1 of the written statement? OPD preliminary
(2) Whether the suit is not proceed able in view of -objection No,2 of the written statement? OPD preliminary
(3) Whether the suit is not proceed able in view of objection No,3 of the written statement? OPD preliminary
(4) Whether the suit is not proceed able in view of objection No,4 of the written statement? OPD preliminary
(5) Whether the suit is not proceed able in view of objection No,5 of the written statement? OPD preliminary
(6) Whether the suit is not proceed able in view of objection No,6 of the written statement? OPD preliminary
(7) Whether the suit is not proceed able in view of objection No,7 of the written statement? OPD preliminary
(8) Whether the suit is not proceed able in view of objection No,8 of the written statement? OPD preliminary
(9) Whether the suit is not proceed able in view of objection No,9 of the written statement? OPD preliminary
(10) Whether the suit is not proceed able in view of objection No,10 of the written statement? OPD preliminary
(11) Whether the suit is not proceed able in view of preliminary objection No,11 of the written statement? OPD
(12) Whether the suit is not proceed able in view of preliminary objection No,12 of the written statement? OPD
(13) Whether the plaintiff is entitled to allotment of Plot No,1-B in lieu of 8-B? If so, on what consideration? OPP
(14) Relief.
5. The parties led their evidence. Vide judgment dated 16-4-2001 learned Civil Judge, Islamabad decided Issues Nos.1, 2, 3, 4 in the negative. Issues Nos.5 and 13 were decided in favor of the respondents while Issues Nos.6, 7, 8 to 12 were decided in the negative. The learned Judge proceeded to decree the suit of the respondent. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Islamabad on 11-7-2001 by endorsing the findings on all the issues recorded by the learned trial Court. While deciding Issue No,13, the learned Additional District Judge observed:-- "It is also established on record that on the application of the respondent, it was principally agreed that Plot No,1-B be allotted to him. Gul Hussain P.W.1 has admitted that the Legal Branch gave opinion that Plot No,1-B be allotted to the respondent but this allotment could not be matured due to pendency of the present suit. He admitted contents of office noting on letter Exh.P.12 as correct which shows that auction of Plot No,1-B was postponed on the ground that this plot was kept available for allotment to respondent as alternative of Plot No,8-B."
6. The learned counsel for the petitioner-defendant, inter alia, contends that the respondent- plaintiff was not entitled to the allotment of the Plot No,1-B as alternative either under any provision of law or contract. Further that the respondent was estopped from claiming the allotment of Plot No,1-B as he had already accepted the allotment of Plot No,13-B. Further it is contended that the Appellate Court without adverting to documentary evidence on record decided the appeal in a slipshod manner and further that the internal noting of the C.D.A. Did not create any right in favor of the respondent unless it was communicated to him in accordance with law. Finally, the learned counsel contends that both the Courts below have not grasped the real controversy between the parties, therefore, proper issues from the pleadings of the parties were not framed; resultantly the case has been decided by the Courts below by non-reading of evidence on the record. He contends that the judgment of the Appellate Court is in violation of Order 41, rule 31, C.P.C. As it does succession and a common seal, with power, subject to the provisions of this Ordinance, to acquire and hold property, both movable and immovable and shall by the said name sue and be sued."
' The management and affairs of the Authority vests in the Board under section 5, and the constitution of the Board is made under section 6 of the Ordinance. Statutory rules and regulations as regards transfer etc. Of the State land in terms of Article 260(c) and 268(7) of the Constitution of the Islamic Republic of Pakistan, 1973 have been declared to be the law for the purposes of Articles 173(5) of the Constitution, Therefore, law exists for dealing with the State land within the limits of Capital Territory Area of Islamabad as held in the case reported as M.D. Tahir, Advocate v. Federal Government through Secretary, Cabinet Division, Islamabad and another 1996 CLC 1987. In para. 7 of the plaint, the plaintiff-respondent asserted that in the Master-plan of the C.D.A., Plot No,1-B is never reserved for the Post Office, but the same is an open plot for restaurant. The C.D.A. Officials in their letter, dated 4-10-1994 advised the respondent to give his consent for the Plot No,13-B and if he has not given the consent, the offer shall stand withdrawn. In reply to the above para. No,7, the C.D.A. In the written statement stated:- "7. That the plaintiff applied for Plot No,1-B, 1/11/4 which was principally agreed but due to non- availability of file and pendency of case with the F.I.A., the request of the plaintiff was not acceded to."
' From the above-stated pleadings, it can be concluded that firstly the respondent has been deprived of the plot for the mistake of the C.D.A., and secondly for the non-availability of the file and pendency of the case with the F.I.A. With no fault of the respondent.
12. A reference has been made by the learned counsel for the petitioner to Exh.D.19, letter dated 23- 1-1995 written by respondent Sh. Muhammad Hanif in which he accepted the offer of Plot No,13-B under protest and the words "under protest" have been erased. In internal noting of the C.D.A.
Exh.P.12 dated 2-2-1991 it has been accepted that the authority has agreed/approved the allotment of an alternative Plot No,1-B in Sector 1-11/4, in lieu of Plot No,8-B, Sector 1-11/4, vide paras. 16, 17 and 24-N of the noting. The Section Officer, Cabinet Division was informed vide page 53 in response to his letter at page 34/Cor of the same noting. Exh.P.19 is the note dated 28-8-2000 of Faiz Muhammad Chaudhry, Director (Law) in which he endorsed the proposal of the Director EM-II. Here it is advantageous to reproduce para. 414 of the noting, which reads as under:-- "414. Reference pre-paras., it is also clarified that Chairman, C.D.A. Approved the allotment of Plot No,1-B to Mr. Muhammad Hanif vide para. 17/N. Therefore, it is proposed that we allot Plot No,I-B to Mr. Muhammad Hanif and any suitable plot from the vacant plots may be allotted to postal authorities."
' Para. 445 of the same noting (Exh.P.20) has clinched the issue, which Para. Reads as follows:-- "445. In view of the position explained above and to resolve this long outstanding issue, the case may be submitted to the competent authority for orders that:--
(a) we may issue allotment letter of Plot NO.1-B to Haji Muhammad Hanif in lieu of Plot No,8-B, (having same dimensions) as the allottee has paid the entire premium about 17 years age.
(b) we may issue allotment letter of Plot No,421, measuring 20' x 70' to the postal authorities in lieu of Plot No,1-B, as the department has agreed to accept the alternate plot and the entire payment of premium also stands paid."
13. An objection has been raised by the learned counsel for the petitioner that the above-stated internal noting is not admissible in evidence and cannot be relied upon which objection is of no substance because I see that no objection whatsoever was raised at the time of production of the documents. It has been held in case reported as Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 that if no objection regarding the formal proof of a document is raised at the time of producing the same, the document shall be read in evidence. Section 49-F of the C.D.A. Ordinance deals with the admissibility of the document or entering as evidence, according to which a copy of any receipt, application, plan, notice order or other document or of any entry in a register, in possession of the Authority shall, if duly certified by the legal keeper thereof or other person authorized by the Authority in this behalf be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would, if produced, have been admissible to prove such matters.
14. The findings on Issue No,13 on the basis of evidence is correct and the respondent is entitled for the allotment of the plot in dispute ice, 1-B, 1-11/14, Islamabad. The C.D.A. Is a statutory body and is expected to deal with the citizens fairly, honestly and it's all actions should be transparent. The respondent cannot be deprived from the plot simply because erroneously a wrong Plot No,8-B in Sector 1-11/4 has been allotted to him which was allotted to some other persons and thereafter he was refused the allotment on the ground that the file is with the F.I.A. And is not traceable or that the plot has already been allotted for construction of post office, which has been proved factually incorrect.
15. It is true that under Order 41, rules 30 and 31, C.P.C. The Court should set out points for determination record its decision thereon and give reason for the decision, and the rule laid down in Order 41, rule 31, C.P.C. Is mandatory and should be followed to enable the Appellate Court to decide the matter in accordance with law. To my mind, the First Appellate Court was conscious of the real issue between the parties and was able to set out points for determination and has recorded the decision thereon and has given valid reasons on the basis of evidence. There is no violation of Order 41, rule 31, C.P.C.
Concurrent finding of fact recorded by the competent Court of law on the basis of evidence cannot be interfered with by this Court in exercise of provisional jurisdiction of this Court. Resultantly, this petition fails and is dismissed.