' This Constitutional petition is filed by Mst. Shahnaz Zafar, the petitioner assailing the letter dated 28th of June, 2003 issued by MEO, Rawalpindi Circle, Rawalpindi Cantt. And letter dated 5th of July, 2003 issued by the Executive Officer, Cantonment Board, Rawalpindi.
2. Letter of the Executive Officer which is impugned is reproduced as under:-- "To. Mrs. Shahnaz Zafar,P-1 (55-55/1) Bank Road, Rawalpindi Cantt.
' Subject: VERIFICATION OF STRUCTURAL. PROPERTY No.(B.No.55. 55/1) RAWALPINDI CANTT.
' Reference this office letter No.F-1(55-55/1) dated 21-12-2002.
2. It has been reported by the field staff that you have dumped the material for construction of additional storyes on subject property. It is to inform you that the MEO Rawalpindi vide letter No.R- 19/157/36 dated 28-6-2003 has revoked the NOC from land point of view in the light of the technical points raised by Brig. Abdus Salam Akhtar and others. The case is being placed before the Board for consideration and decision about your sanctioned plan in the light of said report. You are, therefore, hereby required to maintain status quo till the matter is finalized by the Board.
3. This is final and without any prejudice.
(Sd)
Executive Officer Rawalpindi Cantt."
3. Bare perusal of the letter shows that it was issued on the basisof a letter issued by the Military Estate Officer. The letter of the MEO dated 28th of June is also reproduced hereunder:-- "To. Cantonment Executive Officer, Rawapindi Cantt.
Subject: RAISING OF DANGEROUS STRUCTURE AT BUILDING ON PLOT No.1, 55 & 55/1 BANK ROAD RAWALPINDI.
' Reference joint application dated 13-6-2003.
2. It has been observed that composition of offence of unauthorized construction in respect of Floors Nos.2 and 3 were returned on payment of composition fee vide this office letter No.R- 19/157/II/17, dated 11-2-2000 alongwith NOC for construction of Floors Nos.4, 5 and 6. In this behalf, it has been observed that technical report regarding, load bearing capacity of the existing building was not provided by your office. Hence, in the light of technical points now raised by the applicants the NOC for construction of 4, 5 and 6 Floors over existing building is hereby withdrawn/cancelled.
Besides, the mutation of an area measuring 320 square feet made in favour of Mst. Shahnaz Zafar Wife of M. Zafar is being investigated by this office because the lessee Mr. Said Ali Shah son of Al- Hajj Syed Fazal Shah transferred this area which actually does not exist at site.
3. In view of above, it is advised that construction of additional Floor in above-said plot may not be allowed till further order from this office.
(Sd)
Military Estate Officer, Rawalpindi."
4. The history of the case is that petitioner claims to be the owner of topside of roof of second floor vide sale-deed dated 25th May, 1992for an area measuring 4681 Sq.Fts. The building is situated on Plot Nos.55 and 55/1 Bank Road, Rawalpindi Cantt and the petitioner is stated to have leased hold rights in schedule 10 of the said area for commercial purposes. The construction was started in the year 1992-93. The original plan was sanctioned upto 2nd Floor and the plan for 3rd to 6th Floor was submitted which is shown to have been approved by the Cantonment Board Resolution No.76 dated 14th of October 1995. The resolution of the Board is reproduced hereunder:-- RESOLUTION: "The unauthorized construction of second and third floors is recommended to be compounded on payment of composition fee of Rs.20,000 subject to approval of competent authority, the proposed construction of fourth, fifth and sixth floors are sanctioned subject to usual terms and conditions.
The Cantonment Board approved this resolution on 28-10-1995."
5. The matter remained pending and it appears that the petitioner was not delivered the plan. The revised plan submitted by the petitioner was referred to the Director Military Estate Officer Cantonment Board, Rawalpindi Cantt. For NOC. It is stated the subject to the payment of composition fee amounting to Rs.20,000 under section 25 of the Cantonment Act the building plan was sent to the MEO, Rawalpindi Cantt. Rawalpindi for the clearance of building plan from the land point of view. The MEO vide his letter dated 11th of November, 2000 issued a NOC to the Cantonment Executive Officer, Rawalpindi Cantt. And cleared the same for the construction of the 3rd and 4th floors of the building with the payment of composition fee of Rs.20,000. The petitioner had deposited the fine imposed. Yet the petitioner was not delivered revised approved plan and he had to file Writ Petition No.2927 of 2000. The writ petition was disposed of with the direction to the Cantonment Board to deliver the approved plan to the petitioner.
6. In the meantime, Mr. Abdus Salam Akhtar who is a retired Brigadier and Managing Director of Computer Data System (Pvt.) Ltd. Filed a civil suit claiming to be the owner in respect of two rooms on the 3rd Floor and tenancy on the second Floor. Second suit was filed by the Computer Data System (Pvt.) Ltd. Company, when, the first suit was withdrawn and the second suit is pending. In the second suit interim inOnction was sought to restrain the construction on various grounds like easement, nuisance and apprehension of damage to the property etc., on the proposed construction. The trial Court granted the stay order, which in appeal was reversed by the learned Additional District, Judge and civil revision was filed by the Computer Data System as Civil RevisionNo.375 of 2003 which is heard and decided as connected case and is being decided through a separate order.
7. The only question raised through the present writ petition is that the letter issued by the MEO recalling the NOC was without issuing a notice, it was violative of right accrued to the petitioner and the same was issued on the prompting of Abdul Salam Akhtar (Rtd.) Brig. Who was the Managing Director of Computer Data System (Pvt.) Ltd. Lengthy arguments were addressed by both the sides and with the able assistance of learned counsel, I have examined the record.
8. Section 181 of the Cantonment Act, 1924 vested jurisdiction in the Cantonment Board either refuse to erection or re-erection, as the case may be, of the building or may sanction either absolutely or subject to .Condition of the building plan. The mechanism is provided in the said section for seeking sanction of a building plan. Sub-clause 3 of section 181 contemplates that Board before sanctioning the erection or re-erection of a building on land which is under the management of MEO, shall refer the application to the MEO for ascertaining whether there is any objection on the part of Government to such erection or re-erection; and the Military Estate Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him. Thus, the function of the MEO in the sanction of a building plan by the Cantonment Board is only limited to this extent that he is to ensure whether there is any objection on the part of the Government or not. Military Estate Officer is an officer appointed by the Federal Government to perform duty under rules made under subsection (2)(a)(b) of section 280 of Cantonment Act, 1924.
In the Cantonment area the land of the Government or the land of the Federal Governmetn is administered, supervised, and controlled by the MEO and to ascertain that erection and re- erection of the proposed building is not adverse to the interest of the Government and the Military installments in the Cantonment area and that if the proposed construction is raised on the leased land, the said land is properly owned by the applicant. As regards the municipal functions and other matters related to the proposed construction like right to way, ventilation, structural strength or otherwise. Such functions are within the domain of Cantonment Board and the MEO is not vested with any jurisdiction to oversee these aspects of the building plan. The plan is sent to MEO under sub-clause (3) of section 181 of Cantonment Act, it is for the purpose of obtaining an NOC from the point of view of its location and the land point of view.In the present case the building plan of the petitioner was sent to the MEO who had issued NOC.
9. Vice impugned letter the NOC is recalled. Perusal of impugned letter dated 28th of June, 2002 shows that it was issued in reference tothe joint application dated 30th of June, 2003. At the bottom of the letter endorsement at No.4 it refers to Brig. (Retd.) Abdus Salam Akhtar, Managing Director of Computer Data System (Pvt.) Ltd., Rawlapindi and others with reference to their joint application dated 13th of June, 2003. It appears that the action was initiated on the basis of a joint application filed by Brig. (Retd.) Abdus Salam Akhtar. In the said letter the reference was made to the technical report regarding load bearing capacity of the existing building, on the query of this Court it was found that the said report was procured by Brig. (Retd.) Abdus Salam Akhtar and was submitted to MEO. No independent report was called for by the MEO from the Cantonment Board, Rawalpindi, who had the jurisdiction to prepare such report at the time of examining and scrutinizing the building plan submitted by the petitioner. Further the record shows that this report and the proposed action was not confronted to the petitioner and no notice or any letter for showing cause was issued to the petitioner. This fact was also admitted by the MEO vide statement dated 19-12- 2003 which is reflected in the order-sheet of the same date. Similarly, the question of ownership of the petitioner was also raised by the MEO and it is stated in the letter that the lease of the petitioner is being investigated. The contents of the letter show that MEO has not acted fairly, justly and in proper manner within the parameter point of law. Merely prompted on the joint application submitted by Brig. (Retd.) Abdus Salam Akhtar he issued a letter whereby NOC already granted was withdrawn. This act of the MEO was against the principle of natural justice and violative of doctrine of locus poenitentiae. I have observed while deciding connected civil revision that construction of 3rd and 4th Floors except the finishing work was complete. This fact was also admitted by Messer's Computer Data System (Pvt.) Ltd. When in their plaint they sought a decree for mandatory injunction to seek demolition of the construction of fourth floor obviously, this shows that on the basis of the approved site-plan, the petitioner had completed the construction on the 3rd and 4th Floors and now have valuable rights created, which could not be tampered with by the MEO by recalling the NOC through the impugned letter. Particularly on the consideration of the facts which neither were in his domain nor in his jurisdiction. It appears that the public functiohary like MEO has become a party to a private dispute arisen between the petitioner and the Brig.
(Retd.) Abdus Salam Akhtar and his company Messrs Computer Data System, such a conduct by a public functionary cannot be approved as it is warranted and expected that public functionary have to act impartially, fairly and justly. Thus, the impugned letter dated 28th of June, 2003 issued by the MEO was without any lawful authority and without jurisdiction. Accordingly, the same is struck down to be void, illegal, arbitrary and unjust. Similar is condition in case of the second impugned letter dated 5th of July, 2003, which was issued by the Executive Officer. The second letter in turn was issued on the basis of letter of MEO in which the petitioner was restricted and prevented to continue with the construction. The Executive Officer failed to appreciate that the sanction of the plan was made by the Board and it could only be suspended and stopped by the Board.Without making any inquiry at his end, he merely issued the impugned letter dated 5th of May 2003 on the basis of the letter of MEO. Perusal of the letter shows that it was also endorsed to Big. (Retd.) Abdus Salam Akhtar, Managing Director of Computer Data System (Pvt.) Ltd. And also referred to technical flaws which were raised by the said applicant. Through the impugned letter the Executive Officer Cantonment Board has attempted to nullify the sanction of the plan which was already accorded by the Board. This jurisdiction was not vested with the Executive Officer under Cantonment Act, 1924. This letter was also issued without any notice to the petitioner as such it is violative of principle of natural justice as well as the doctrine of locus penitential and manifestly was beyond the jurisdiction of the Executive Officer. Resultantly, it is also struck down as arbitrary, unfair, unjust and without any lawful authority.
9. The upshot of the above discussion is that this writ petition is allowed and the impugned order dated 5th of July, 2003 issued by Executive Officer, Rawalpindi Cantonment Board to the petitioner and the impugned letter dated 28th of June, 2003 issued by the MEO and are declared to be unlawful, without jurisdiction and of no legal effect.