PLJ 2004
Present: ABDUL SHAKOOR PARACHA, J. MUHAMMAD HUSSAIN and another-Petitioners
versus
FEDERATION OF
W.P. No. 2840 of 2001, heard on 29.5.2003.
Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983--
—-Art. 32-Constitution of
President against recommendations of Wafaqi Mohtasib whereby relief
granted to petitioners by Wafaqi Mohtasib was withdrawn-Such order of
President being in violation of principles of natural justice i.e., not
affording opportunity of being heard to petitioner, was excluded from
consideration-As far sale agreement, time was not the essence of
contract-Delivery of possession of plot in question, having not been
delivered to petitioner, he could not be expected to have complied with
terms of agreement relating to payment of remaining/balance amount-
Amount of specified interest demanded from petitioner was, thus, not
warranted and the same was declared to be without lawful authority and
of no legal effect. [P. 155] A
1996 MLD 60; AIR 1958 Punj 289; 1998 CLC 1453 and 1999 SCMR 2744 ref. Ch. Muhammad Tariq, Advocate for Petitioners. Mr. Nau-Bahar Ali, Advocate on behalf of Malik M. Nawaz Khan, Advocate for Respondent No. 2.
Mr. Ahmad Naeem Qureshi, Federal counsel for Respondent No. 1. Date of hearing : 29.5.2003.
JUDGMENT
The facts of this case are brief and straightforward. The petitioners purchased one Agro Farm measuring 2.5 Acres, Bearing No. 8, situated at Poultry and Vegetable Scheme No. I (Extension), Tarlai Kalan, District Islamabad, for a total consideration of Rs. 17,50,000/-, in the year 1994, out of ten plots which were put to auction by the C.D.A. As per terms of the auction, the petitioners paid Rs.1005000/- including C.V.T. and income tax, which was acknowledged by the CDA on acceptance of the bid offered by the petitioners. The possession was not delivered to the petitioners by the CDA because the original owners whose lands were acquired were in possession of the same and litigations were pending between the owners and Respondent No. 2, CDA. On 9.7.1995, a legal notice was served to the respondent demanding possession of the plot by the petitioners. The Respondent No. 2
demanded balance amount along with interest within 15 days from the petitioners vide their notice/letter dated 9.7.1998. The petitioners lodged a complaint to the Hon'ble Wafaqi Mohtasib, Islamabad asserting their grievance that the possession of the plot has not been delivered, who directed the C.D.A. vide his order dated 11.2.1999 to deliver the possession of the plot. The petitioners were also directed to pay the balance amount within seven days after the delivery of possession to them. The physical possession of the plot was delivered to the petitioners on 8.6.1999 and the petitioners also paid the balance amount of Rs. 8,85,000/- to the CDA on 17.5.1999 before the delivery of possession of land to the petitioners. Meanwhile, the respondent filed a representation before the Worthy President of Pakistan seeking annulment of the order of Wafaqi Mohtasib dated 11.2.1999. Through letter dated 15.6.2001 of the Law, Justice and Human Rights Division, Government of Pakistan, Islamabad, the petitioners were informed, that representation of CDA has been accepted by the President and he has set aside the order of the Wafaqi Mohtasib dated 11.2.1999. Respondent No. 2 CDA vide letter dated 2.8.2001 also demanded Rs. 6,11,384/- as interest from the petitioners.
2. In pursuance of the order dated 16.11.2001 of this Court,
Respondent No. 2 CDA has filed written statement, wherein it has been
admitted that the plot in dispute was purchased by the petitioners through
open auction held on 8.2.1994. They deposited 50% of the total premium of
the plot amounting to Rs. 8,75,000/- after which formal allotment letter was
issued to them on 4.9.1994 (Annexure-1); the balance 50% amount of
Rs. 8.75000/- was payable in four equal six monthly instalments of
Rs. 2,18,750 each by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996. It was
further stated that the allottees neither paid any instalment nor even
approached the Authority for delivery of possession of the plot. However, for
the first time the legal notice dated 8.9.1998 was received from the allottees
requesting for handing over of possession of the said plot. Since village Jaba
Tali was existing in the above mentioned scheme area, including the site of
the said plot, as an encroachment by local Abadi, the physical possession of
plot could not be handed over to the allottees. It was admitted that the
petitioners filed a complaint before the Wafaqi Mohtasib and being aggrieved
of the findings/recommendation dated 16.2.1999 of the Wafaqi Mohtasib, the
CDA made a representation to the Hon'ble President, who accepted the
same and set aside the recommendations of the Wafaqi Mohtasib.
3. Purchasing of the plot by the petitioners through auction held on
8.2.1994 and the deposit of 50 percent Premium of the plot amounting to
Rs. 8,75,000/- and issuance of allotment letter on 4.9.1994 (Annexure-I) by
the CDA, Respondent No. 2, in favour of the petitioners are admitted by both the sides. The controversy can be resolved by reading of the allotment letter dated 4.9.1994 (Annexure-I) in which schedule of payment of remaining four instalments by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996 has been mentioned. It is also provided under Condition No. 4 that the possession of the land shall be taken by the allottee within one month from the date of issuance of the letter, failing which possession shall be deemed to have been taken over. Conditions Nos. 4, 5 and -6 of the said allotment letter are relevant, which read as follows:-
"4. Possession of the land shall be taken by you within one month from the date of issue of this letter, failing which possession shall be deemed to have been taken over.
5. If any amount remains in arrears for more than two months, it
shall be lawful for the Authority to cancel the allotment/lease and
resume possession of the plot in accordance with the terms and
conditions contained herein.
6. Charges on delayed payments will be levied at the rate of 16% per
annum (or as may be revised from time to time) on all types of
delayed payments."
4. It is respondent-CDA's own case that village Jaba Tali, which was existing in the above mentioned scheme area, including the site of the plot, as an encroachment by local Abadi, physical possession of the plot could not be handed over to the allottee concerned, meaning thereby that the CDA was not able to perform its part of the agreement. In this view of the matter, the Respondent No. 2 could not ask for payment of the remaining instalments within the stipulated period mentioned in the allotment letter. According to Section 51 of the Contract Act, when a contract consists of reciprocal promises to be simultaneously performed, no promisor needs perform his promise, unless the promisee is ready and willing to perform his reciprocal promise. In case reported asRasik v. Chandra (10 1C 525), it has been ruled that a purchaser is not bound to pay the balance of the purchaser money till the vendors have put the property in the condition in which it was to be conveyed to him." Similarly, Section 52 of the said Act says that, "Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires."
In the case of Said Muhammad vs. Abdur Rehman (1996 MLD 60) while interpreting the provisions of Section 51 of the Contract Act, 1872 (IX
of 1872) while relying on the case reported as DinaNath Dutt vs. Maha Vir Gupta (AIR 1958 Punj. 289) (V 45 C 77) (D.B.) it was held that:
"Plaintiff need not have offered to make balance amount to defendant on specified date for defendant's title was not perfect on said date and defendant was not ready on said date to perform his reciprocal promise of transfer of land in favour of plaintiff."
In the case of Dina Nath Dutta (Supra) it was held that even if time is the essence of contract of sale, where the vendor has not perfected his title to the goods by the date when the contract has to be completed, there is no breach of the contract on the part of the vendee.
5. The Wafaqi Mohtasib recommended that the agency should
deliver possession of the plot as soon as possible to the petitioners and they
shall pay the balance amount of premium' within seven days of the
possession is delivered to them. Before the representation under Article 32 of
the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983
could have been filed by the Respondent No. 2 CDA before the President, the
order of the Wafaqi Mohtasib dated 11.2.1999 was implemented in letter and
spirit as the petitioners had paid the balance amount on 17.5.1999 and
performed their part of agreement and the Respondent No. 2 delivered the
possession and thus it also performed its part of the agreement.
6. The plot allotted to the petitioners was admittedly subject-matter
of litigation right from the date of auction. The respondents failed to deliver
the possession of the said plot to the petitioners with clear title and free of
encroachment which resulted in delay in payment of premium price. In such
circumstances, non-compliance of the terms of the allotment order by
respondent, ensuing from litigation and encroachment on the plots,
legitimately gave a right to the petitioners to require the respondent to hand
over physical possession to enable them to pay the balance price and proceed
with the project in question. The petitioners, in these circumstances, could
have not made suffer for the acts of others or action or inaction on the part of
the respondent. Therefore, the respondent was not justified to impose the
delayed payment charges.
7. A similar question came up for consideration before this Court in
case reported as Messrs Essem Hotels (Pvt.) Ltd, through Director vs.
Capital Development Authority, Islamabad through Chairman and 2 others
(1998 CLC 1453) and it was observed that respondent could not impose
delayed payment charges, and the impugned order to that extent was
declared to be illegal and of no legal effect.
|
8. The petitioners were not given any-notice or were heard before
the worthy President while passing the impugned order communicated to
the petitioners by Law, Justice and Human Rights Division, Government of
Federation of Pakistan through Secretary, Establishment Division,
Government of Pakistan Islamabad vs. Muhammad Tariq Pirzada and 2
others (1999 SCMR 2744) that:
"Even if it was assumed that institution of "Wafaqi Mohtasib" was an administrative body and President of Pakistan also acted in administrative capacity, while disposing of petition under Art. 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, an aggrieved person in whose favour a recommendation had been made or finding recorded by Mohtasib had legal right to demand that adverse decision should not be taken against him in violation of principles of natural justice."
9. I am constrained to exclude from consideration the order passed
by the President, whereby representation of the Authority against • the
recommendations of Wafaqi Mohtasib was accepted on the ground that the
order passed by the President is in violation of the principles of natural
justice and that time was not the essence of the agreement under the
Contract Act, 1872. There was no fault of the petitioners that the plot, which
was under litigation and was in possession of the\ex-owners, could not have
been handed over to the petitioners within the stipulated time of one month.
In this view of the matter, the demand of the respondent of the amount of
Rs. 6,11,384/- through the impugned letter of the respondent bearing
No. CDA/EM-II/PVC-39/(8)/2001/708 dated 2.8.2001 is declared to be
without lawful authority and of no legal effect.
Resultantly, the writ petition is allowed and disposed of.
(A.A.) Petition accepted.
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