Facts giving rise to the present writ petition are to the effect that the petitioners, are residents of Ahmad Ghafoor Housing Society and Sidra Ghafoor Town, Okara. Both the places are adjacent to the Medical Colony on the northern side while District Headquarters Hospital is situated on southern side of Medical Colony. The petitioners alongwith some other people of the area moved an application to Respondent No, 1 for installation of a gate on the northern side of main road of Medical Colony by demolishing wall intervening the Medical Colony and aforementioned Ahmad Ghafoor Housing Society.
2. Respondent No, 1 called comments from Respondent No, 2 who after obtaining report/comments from Respondent No, 3 remitted back to Respondent No, 1 with remarks that he has no objection for installation of a gate by demolishing the wall of medical colony and Respondent No, 1 vide order dated 3.5.2003 directed Respondent No, 2 to take further action in the matter. Consequently, the petitioners were allowed to demolish the wall of medical colony, where they installed a gate. This action of the respondents was reacted by residents of the colony as well as members of public press. Protest was launched to the respondents and to the public representative of the area and in consequence thereof the action taken for installation of gate in the medical colony was re-called, the gate was closed, and wall repaired which prompted the petitioners to knock the constitutional jurisdiction of this Court.
3. Learned counsel for the petitioners argued that the petitioners had been prejudiced by the act of the respondents in their absence. The gate installed by the petitioners was closed under the order of the respondent in their absence and this act of the respondents is void under the principle of audi-alteram partem. Further contended that a vested right has been accrued to the petitioners and the principle of locus poenitentiae is applicable to their case. He relied on case of Pakistan through the Secretary, Ministry of Finance vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407).
4. On the other hand, learned Law Officer has vehemently opposed the arguments addressed by the learned counsel for the petitioners, contending that the respondents while sanctioning the gate by demolishing the boundry wall of the medical colony were not competent. The D.C.O. is only a co-ordination officer and cannot pass the order for demolision of boundry wall that the boundry wall had been constructed. by the Health Department for protection and safety of the employees of DHQ Hospital Okara and this was the property of Provincial Govt. but sanction was not accorded by the Government; that the passage was illegally opened through the medical colony, showing highhandedness of the developers of the private colony; that the passage and gate has been closed by repairing the wall and Haji Abdul Ghafoor one of the applicant on whose application the action was initiated by the DCO has filed a suit for permanent injunction in the Civil Court which was dismissed on 21.5.2003 for non-prosecution and this order had not been challenged anywhere therefore, it had attained finality and this fact was concealed by the writ petitioners; further that this writ petition is not maintainable as involving question of fact, hence liable to be dismissed.
5. I have heard the learned counsel for the parties and perused the record, parawise comments furnished by the Medical Supdtt. as well as E.D.O./Respondents Nos, 2 and 3.
6. In this case, the factual position is that on the northern side of medical colony, some agricultural land is owned by Fakhar ' Hayat, Muhammad Aslam Hayat and other persons. Adjacent to this land some other parcels of land have also been converted into residential area much earlier by their owner's gradually buy passage of time. These colonies are named as "Amir Colony", Kausar Town' and `Javed Town' etc. and said Fakhar Hayat and others have made up their mind to change the character of the land into residential through one Property. Dealer, namely, Haji Abdul Ghafoor.
They intend to name their proposed colonies as "Sidra Ghafoor Town & Ahmad Ghafoor Housing Society", but uptil now they could not get approval from the Board of Revenue nor any proof in this regard has been placed on the file of this Court.
7. An application was moved by Haji Abdul-Ghafoor and others to District Nazim Okara for the sanction of passage through medical colony to approach Ahmad Ghafoor Housing Society etc. and under the influence of one of the high ranking officer in the Health Deptt. Govt. of Punjab, the Respondents Nos, 2 and 3 recommended to demolish the wall of medical colony for installation of gate for these applicants including the present petitioners. This fact is strengthened from the letter of the Executive District Officer Health, Okara, to D.C.O., wherein, it has been stated as under:-- "It is further intimated that a high ranking officer in the Health Department, Govt. of Punjab, is also interested to extend this facility to the concerned public of the area." and on his recommendation the DCO vide, his order dated 3.5.2003 directed them for further action and under his direction, Respondents Nos, 2 and 3 allowed the passage through medical colony.
This order was obtained by the applicant/petitioners-without issuing notice to the residents of the medical colony of DHQ Hospital and that's why they protested, when the factual position came into their knowledge. When protest was launched by the inhabitents of the area and the public at large, the respondents were constrained to close the gate and passage.
8. It is admitted fact that building and property of the Medical Complex belong to Provincial Government, any alteration, demolision or addition could only be made by the respondents after prior approval from the Government/competent authority and he is "Secretary Health". The whole proceedings by the respondents by allowing the use of passage through medical colony was illegal, without jurisdiction, mala-fide and just to benefit/accommodate the owners-petitioners etc. of the proposed colony. Learned counsel for the petitioners when confronted to produce the law or the authority exercised by the respondents, could not satisfy this Court.
9. The functions of DCO have been provided in Section 28 of Punjab Local Govt. Ordinance, 2001 read as under:-- The District Coordination Officer shall be coordinating head of the District Administration and shall- - (a)ensure that the business of the District Coordination Group of Officers is carried out in accordance with the laws for the time being in force; (b)co-ordinate the activities of the groups of offices for coherent planning, synergistic development, effective and efficient functioning of the District Administration; (c)exercise general supervision over programmes, projects, services and activities of District Administration;
(ci) coordinate flow of information required by Zila Council for performance of its functions under this Ordinance;
(e) act as Principal Accounting Officer of District Government and be responsible to the Public Accounts Committee of the Provincial Assembly; (f)act and perform functions of Collector under Sections 54, 68, 70(2), 71, 72, 92, 93, Rule 18 of Order XXI Order XL 'and for similar other provisions of the code of Civil Procedure 1908 (Act V of 1908); (g)assist the Nazim in accomplishment of administrative and financial discipline and efficiency in the discharge of the functions assigned to District Administration; (h)prepare a report on the implementation of development plans of the District Government for presentation to the Zila Council in its annual budget session; and (i)initiate the performance evaluation reports of the Executive District Officers and shall be countersigning of such reports of the District Officers initiated by the Executive District Officers.
From the bare reading of the above provision of law, it is manifestly clear that Respondent No, 1 was not competent to allow the petitioners or other interested persons to demolish and install the gate in the 'boundary wall of the medical colony. Learned counsel for the petitioners when questioned to point out the violation of any law and rules made by the respondents by closing the passage, failed to satisfy the Court and a writ is only maintainable if the authority/Public functionaries violated any provision of law or statutory rules. In this context, reliance can be made to the cases of Shahid Bashir vs. Chairman Punjab Board of Technical Education (2001 M LD 573) and Rashid Ali vs. National College of Arts (2001 YLR 1428). Learned counsel for the petitioners has also not established with proof any malafide against them and where there are general allegations of malice the constitution petition is not maintainable. In this respect, reference can be made to the case of `Syed Nawaz' reported as (PLD 1981 SC 371).
10.An application No, 1546/03 has been filed by the residents of medical colony in this Court to implead them as party in the writ petition, wherein, it is stated that Aftab Ahmad Manika, the then Addl. Secretary Punjab, a close relative of the owner of the agricultural land was interested and on whose direction the respondents had issued (No Objectton Certificate) for installation of the gate in the boundary wall as is admitted in the letter issued by the E.D.O. Okara, referred to in the preceding paragraphs.
11.No thorough-fare can be allowed through the colonies maintained by the Government without sanctioning of the competent authority. The medical colony is a Government property. It was walled off to provide security of life and property to the residents (Medical & Para medical staff), who remain on duty on emergency call round the clock. The developers of the private colonies had been trying to connect the developing areas with the city roads through the medical colony by demolishing a part of boundary wall and establishing a thorough-fare through the medical colony and under their pressure the DCO and Respondents Nos, 2 and 3 have allowed the installation of gate and use of a thoroughfare through medical colony. Since there was no sanctioned public thorough-fare and if for some days or months it was being used as such, it cannot be said that any vested right has been accured to the petitioners under the principle of locuspoenitentiae.
According to the record, the DCO had issued direction to the respondents for initiating action for the installation of the gate on 3.5.2003 and Haji Abdul Ghafoor had filed a suit for permanent injunction against the respondents, restraining them from closing the said passage on 8.5.2003, which was dismissed as withdrawn on 21.5.2003 and feeling their mistake, Respondent No, 2 and 3 moved to the DCO. On 8.5.2003 through a letter dated 9.5.2003 for recalling of his direction and that's why the civil suit was filed on the said date. This fact was concealed by the petitioners and after exhausting the alternate remedy, they have approached this Court through the instant petition and if any fact is concealed by the writ petitioners, this Court would be competent to decline to interfere with the matter while exercising its constitutional jurisdiction.
12.As to the argument of learned counsel for the petitioners that a vested right had been accrued to the petitioners under the principle of locus-poenitentiae, is concerned, according to 'Black's Law Dictionary, the word locus-poenitentiae has been defined i,e, a place for repentance; an opportunity for changing one's mind; and opportunity to undo what one has done; a chance to withdraw from a contemplated bargain or contract before it results in a definite contractual liability; a right to withdraw from an incompleted transaction."
13. The competent authority which passes any order has the power to undo it under General Clauses Act as well as under principle of "locus-poentientiae" but the authority cannot withdraw/rescind the order if it has taken its legal effect. The DCO and functionaries of Health Deptt. passed the order or initiated action without sanction/approval of the competent authority and they acted in excess of jurisdiction. Though, the concept of "locus-poenitentiae" is the power of rescinding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and close transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order. Reliance in this respect can be made to the cases of Abdul Haq Indhar vs. Prov. of Sindh through Secretary Forest, Fisheries and Livestock Deptt.
Karachi (2000 SCM R 907), Messrs Excell Builders reported as (1999 SCM R 2089), The Engineer-in- Chief Branch through Ministry of Defence vs. Jalaluddin (PLD 1992 SC 207) and Ayesha Afzal vs. Chairman Board of Intermediate and Secondary Education Faisalabad (2001 CLC 1765). Where order in question was illegal, it can be rectified, rescinded, altered and principle of "locus- poenitentiae" would not be applicable to such case. Reliance in this respect can be made to case of Darayus Pestonii vs. Nam Singh (1998 CLC 921).
14. It is well settled proposition of law that the Tribunal acting beyond sphere allotted to it by law and action is a nullity in the eyes of law E and the superior Courts would refuse to perpetuate something patently unjust and unlawful as laid down in Raunaq Ali's case reported as (PLD 1973 SC 236). The action of respondents, in the case in hand, sanctioning the gate in the boundary wall of the medical colony was beyond their authority and it was itself a nullity in the eyes of law and if recalled would not prejudice the rights of the petitioners because an order/action which is a nullity in the eyes of law is not sustainable and it gives no vested right to a party in whose favour it is passed.
15. So far as the question of legal right of the petitioner is concerned, suffice it to say, that legal right is one which is enforceable before Courts and is based upon statute and is invoked for having secured interest. Reliance in this respect can be made to the case of Farukh Din vs. Govt. of Sindh (PLD 2000 Kar. 154).
16.The original order, giving permission to use the passage to the petitioners and others, developers of agricultural land for residential colonies, had been passed without permission of the Government and the consent of the medical staff in their absence which was itself a coram-non- judice order just to accommodate/benefit the owners of the agricultural land.
17.As per record of right pertaining to the years 1996-97, the land covered . by the medical colony belonging to the Provincial Government/Health Deptt. entered as `Ghair Mumkin medical colony' could not be used for the benefit of private party. The letter dated 8.10.2003 issued from E.D.O. (R) to M.S. DHQ Hospital Okara, depicts that according to the revenue record there is no colony in the name of Ahmad Ghafoor Housing Society and Sidra Ghafoor Town situated at northern side of Medical colony Okara.
18.From the above facts it is proved that this writ petition pertains to question of fact which cannot be adjudicated upon or gone into by this Court in exercise of its constitutional jurisdiction as laid down in Muhammad Yunus Khan vs. Govt. of NWFP (1993 SCM R 618) and Federation of Pakistan vs. Major Rtd. Muhammad Sabir Khan (PLD 1991 SC 476). Learned counsel for the petitioners has not been able to make out a case for interference in exercise of its constitutional jurisdiction and miserably failed to point out any illegality, violation of any' 'law, mis-use of authority by the respondents while closing the gate installed in the wall of the medical colony rather they rectified their mistake committed by them and excess exercise of their jurisdiction.
19. For the foregoing reasons, this writ petition having no force is dismissed. Since the main case has been dismissed, therefore, CM Bearing No, 1546/03 being infructuous is also disposed of accordingly. However, if the order passed in the main case is assailed through an appeal, the applicant may appear before the appellate forum, to be impleaded as party.