PLJ 2009 SC 777
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
M/s. INTENSIVE AGRICULTURAL PRODUCTION PROJECT
CO-OPERATIVE SOCIETY, LTD., ISLAMABAD through
its General Secretary--Petitioner
versus
CAPITAL DEVELOPMENT AUTHORITY through its Chairman & another--Respondents
Civil Petition No. 124 of 2009, decided on 5.3.2009.
(On appeal from the judgment dated 26.1.2009 of the Islamabad High Court, Islamabad passed in W.P. No. 1483/2008)
Constitution of Pakistan, 1973--
----Art. 185(3)--Appellate jurisdiction--Allotment of plot--Cancellation of--Restoration of plots, which remained undecided--Challenge to--There was no dispute between the parties till payment of seventh installments but when petitioner deposited outstanding amount the same were returned and plots were cancelled--Respondent had failed to show that why the installment was returned after lapse of about 9 months and whether any notice before cancelling the plots were served upon him--Act of respondent was based on malafide intention, arbitrarily and against the principles of natural justice--Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price--Petitioner had paid almost all the premium and the dispute was only with regard to payment of delayed charges and petitioner frankly conceded that petitioner was ready to clear outstanding due against him--Leave accepted. [P. 780] A
Mr. Shoaib Shaheen, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Abdul Karim Kundi, Sr. ASC and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 5.3.2009.
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is filed against judgment dated 26.1.2009 passed by learned Islamabad High Court, Islamabad whereby Writ Petition No. 1483 of 2008 filed by petitioner was dismissed.
2. Briefly stated facts leading to the filing of instant petition are that petitioner being Co-operative Society was allotted Plots No. 36, 38 and 39 in Scheme No.II, Sehana Extension, Tarli Kalan, Islamabad measuring approximately 15 acres barren land by the respondents/ department through lease agreement dated 22.5.1985 for a period of 33 years. The possession of the subject plots was taken over by the petitioner on 25.1.1987, however, vide letter dated 02.6.1987 the size of plot was increased to 17.045 acres from the original size viz. 15 acres, accordingly, the premium was also enhanced. The petitioner invested huge amount for the development of the land and after hectic efforts the barren land was converted into cultivating land. The petitioner is growing and producing different kinds of vegetables and fruits on the land as per respondents' policy. The allotee/petitioner was required to paid premium in eight equal installments. The petitioner kept on depositing the premium and no dispute arose till payment of seven installments. The petitioner deposited last installment i.e. eighth on 27.6.1997 which was returned being barred by time and the plots were cancelled on 24.2.1998 without affording him opportunity of hearing. Feeling aggrieved petitioner filed application on 4.3.1998 for restoration of plots which was not decided and restrained the petitioner to file Writ Petition No.465 of 1998 before learned Lahore High Court, Rawalpindi Bench, Rawalpindi, which was admitted for hearing and direction was given to the respondents to re-examine the petitioner's case. In compliance of same the case of petitioner was placed before the CDA Board, which took following decision:
"The case was discussed in detail and the Board observed that the allotee remained defaulter from 1985 till the cancellation of the plots i.e. 25.2.1998. Hence, at this belated stage consideration of restoration of plots on payment of all the charges will open a Pandora box and it will create problem to the Authority. To consider all the aspect of the case by the Board, it was decided that all the three plots be disposed of through open auction. The possession of plots is with CDA."
On establishment of Islamabad High Court, Islamabad the case was transferred there and came up for hearing on 17.3.2008 whereby the writ petition was disposed of with a direction to respondents to consider the case of the petitioner for restoration of cancelled allotment in the next meeting. In pursuance to the direction of the learned High Court, the Board considered the case of the petitioner but did not accede the request of petitioner. Feeling still not satisfied petitioner filed another Writ Petition No. 1483 of 2008 which was dismissed vide impugned judgment as stated above.
3. It is vehemently contended by learned counsel for the petitioner that learned High Court has not appreciated the facts of the case of petitioner in its true perspective which resulted in miscarriage of justice. According to him, no notice was issued before canceling the plots allotted to the petitioner. He contended that act of the respondents/department being discriminative in nature and against the principle of natural justice is not warranted by law. He further contended that last installment deposited by petitioner was returned after a lapse of more than nine months without any justification. He, however, conceded that petitioner is ready to deposit all outstanding amount.
4. On the other hand, learned counsel for the respondents controverted above contentions and contended that writ petition before learned High Court is not maintainable as petitioner has failed to avail remedy available to him under the law. He further contended that petitioner vide letter dated 4.5.1995 was informed to remit Rs.228,375/72 within 15 days failing which the plot will be withdrawn/cancelled without further notice. He contended that petitioner has failed to deposit the outstanding does and delayed charges within the stipulated period, as such plots were rightly cancelled. He further contended that in pursuance to the direction of learned High Court the case was placed before CDA Board, which did not accede the request of petitioner for the following reasons:--
(a) The allotee failed to pay the premium in time.
(d) The plots were not developed as per terms and conditions conveyed at the time of allotment.
(c) The plots were allotted for a specific purpose of vegetable and Fruit Farms and for the establishment of Green House, but he failed to develop these plot.
5. In rebuttal learned counsel for the petitioner contended that according to the terms of the lease agreement all the dues of the CDA in respect of agreement including arrears of rent and interest on the amount due were recoverable by the Authority through the Collector as arrears of land revenue as empowered by the provisions contained in Section 49-A of the CDA Ordinance if the allottees failed to make payment of such dues within the specified period.
6. We have considered the contentions raised at the bar and have gone through the record and proceedings of the case in minute particulars. It is pertinent to mention here that there was no dispute between the parties till payment of seventh installment which was accepted without any objection. The respondents vide letter dated 1st February 1997 asked petitioner to deposit outstanding amount of Rs.253,599/99 but when petitioner on 27.6.1997 deposited Rs. 91,325/- the same were returned being barred by time and the plots were cancelled. When confronted learned counsel for the respondents has failed to show that why the installment was returned after lapse of about nine months and whether any notice before canceling the plots were served upon him. It seems that this act of the respondents is based on mala fide intention, arbitrarily and against the principles of natural justice. Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price. The perusal of record reveals that petitioner had paid almost all the premium and the dispute is only with regard to payment of delayed charges and learned counsel for the petitioner frankly conceded that petitioner is ready to clear all outstanding due against him.
7. The upshot of above discussion is that this petition is converted into appeal and is allowed. The impugned judgment as well as the letter canceling the plots are set aside. The plots stand restored in favour of appellant, who is directed to deposit outstanding dues including 8th installment within three days. Compliance report be submitted with the Registrar of this Court.
(N.I.) Petition allowed.
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
M/s. INTENSIVE AGRICULTURAL PRODUCTION PROJECT
CO-OPERATIVE SOCIETY, LTD., ISLAMABAD through
its General Secretary--Petitioner
versus
CAPITAL DEVELOPMENT AUTHORITY through its Chairman & another--Respondents
Civil Petition No. 124 of 2009, decided on 5.3.2009.
(On appeal from the judgment dated 26.1.2009 of the Islamabad High Court, Islamabad passed in W.P. No. 1483/2008)
Constitution of Pakistan, 1973--
----Art. 185(3)--Appellate jurisdiction--Allotment of plot--Cancellation of--Restoration of plots, which remained undecided--Challenge to--There was no dispute between the parties till payment of seventh installments but when petitioner deposited outstanding amount the same were returned and plots were cancelled--Respondent had failed to show that why the installment was returned after lapse of about 9 months and whether any notice before cancelling the plots were served upon him--Act of respondent was based on malafide intention, arbitrarily and against the principles of natural justice--Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price--Petitioner had paid almost all the premium and the dispute was only with regard to payment of delayed charges and petitioner frankly conceded that petitioner was ready to clear outstanding due against him--Leave accepted. [P. 780] A
Mr. Shoaib Shaheen, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Abdul Karim Kundi, Sr. ASC and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 5.3.2009.
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is filed against judgment dated 26.1.2009 passed by learned Islamabad High Court, Islamabad whereby Writ Petition No. 1483 of 2008 filed by petitioner was dismissed.
2. Briefly stated facts leading to the filing of instant petition are that petitioner being Co-operative Society was allotted Plots No. 36, 38 and 39 in Scheme No.II, Sehana Extension, Tarli Kalan, Islamabad measuring approximately 15 acres barren land by the respondents/ department through lease agreement dated 22.5.1985 for a period of 33 years. The possession of the subject plots was taken over by the petitioner on 25.1.1987, however, vide letter dated 02.6.1987 the size of plot was increased to 17.045 acres from the original size viz. 15 acres, accordingly, the premium was also enhanced. The petitioner invested huge amount for the development of the land and after hectic efforts the barren land was converted into cultivating land. The petitioner is growing and producing different kinds of vegetables and fruits on the land as per respondents' policy. The allotee/petitioner was required to paid premium in eight equal installments. The petitioner kept on depositing the premium and no dispute arose till payment of seven installments. The petitioner deposited last installment i.e. eighth on 27.6.1997 which was returned being barred by time and the plots were cancelled on 24.2.1998 without affording him opportunity of hearing. Feeling aggrieved petitioner filed application on 4.3.1998 for restoration of plots which was not decided and restrained the petitioner to file Writ Petition No.465 of 1998 before learned Lahore High Court, Rawalpindi Bench, Rawalpindi, which was admitted for hearing and direction was given to the respondents to re-examine the petitioner's case. In compliance of same the case of petitioner was placed before the CDA Board, which took following decision:
"The case was discussed in detail and the Board observed that the allotee remained defaulter from 1985 till the cancellation of the plots i.e. 25.2.1998. Hence, at this belated stage consideration of restoration of plots on payment of all the charges will open a Pandora box and it will create problem to the Authority. To consider all the aspect of the case by the Board, it was decided that all the three plots be disposed of through open auction. The possession of plots is with CDA."
On establishment of Islamabad High Court, Islamabad the case was transferred there and came up for hearing on 17.3.2008 whereby the writ petition was disposed of with a direction to respondents to consider the case of the petitioner for restoration of cancelled allotment in the next meeting. In pursuance to the direction of the learned High Court, the Board considered the case of the petitioner but did not accede the request of petitioner. Feeling still not satisfied petitioner filed another Writ Petition No. 1483 of 2008 which was dismissed vide impugned judgment as stated above.
3. It is vehemently contended by learned counsel for the petitioner that learned High Court has not appreciated the facts of the case of petitioner in its true perspective which resulted in miscarriage of justice. According to him, no notice was issued before canceling the plots allotted to the petitioner. He contended that act of the respondents/department being discriminative in nature and against the principle of natural justice is not warranted by law. He further contended that last installment deposited by petitioner was returned after a lapse of more than nine months without any justification. He, however, conceded that petitioner is ready to deposit all outstanding amount.
4. On the other hand, learned counsel for the respondents controverted above contentions and contended that writ petition before learned High Court is not maintainable as petitioner has failed to avail remedy available to him under the law. He further contended that petitioner vide letter dated 4.5.1995 was informed to remit Rs.228,375/72 within 15 days failing which the plot will be withdrawn/cancelled without further notice. He contended that petitioner has failed to deposit the outstanding does and delayed charges within the stipulated period, as such plots were rightly cancelled. He further contended that in pursuance to the direction of learned High Court the case was placed before CDA Board, which did not accede the request of petitioner for the following reasons:--
(a) The allotee failed to pay the premium in time.
(d) The plots were not developed as per terms and conditions conveyed at the time of allotment.
(c) The plots were allotted for a specific purpose of vegetable and Fruit Farms and for the establishment of Green House, but he failed to develop these plot.
5. In rebuttal learned counsel for the petitioner contended that according to the terms of the lease agreement all the dues of the CDA in respect of agreement including arrears of rent and interest on the amount due were recoverable by the Authority through the Collector as arrears of land revenue as empowered by the provisions contained in Section 49-A of the CDA Ordinance if the allottees failed to make payment of such dues within the specified period.
6. We have considered the contentions raised at the bar and have gone through the record and proceedings of the case in minute particulars. It is pertinent to mention here that there was no dispute between the parties till payment of seventh installment which was accepted without any objection. The respondents vide letter dated 1st February 1997 asked petitioner to deposit outstanding amount of Rs.253,599/99 but when petitioner on 27.6.1997 deposited Rs. 91,325/- the same were returned being barred by time and the plots were cancelled. When confronted learned counsel for the respondents has failed to show that why the installment was returned after lapse of about nine months and whether any notice before canceling the plots were served upon him. It seems that this act of the respondents is based on mala fide intention, arbitrarily and against the principles of natural justice. Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price. The perusal of record reveals that petitioner had paid almost all the premium and the dispute is only with regard to payment of delayed charges and learned counsel for the petitioner frankly conceded that petitioner is ready to clear all outstanding due against him.
7. The upshot of above discussion is that this petition is converted into appeal and is allowed. The impugned judgment as well as the letter canceling the plots are set aside. The plots stand restored in favour of appellant, who is directed to deposit outstanding dues including 8th installment within three days. Compliance report be submitted with the Registrar of this Court.
(N.I.) Petition allowed.
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