Sheikh WAJAHAT ALI vs GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Industries and 3 others

' WAQAR AHMAD SETH, J.---Sheikh Wajahat Ali petitioner seeks the constitutional jurisdiction of this Court praying for:-- "that on acceptance of the instant writ petition, the impugned order/ letter dated 2-2-2010 and the allotment order, if any, in favour of respondent No,4 may very graciously be declared illegal and void ab initio and the same, be, therefore, struck down and the respondents be directed to restore the possession of the factory/plot to the petitioner".

2. Brief facts, as per contents of petition, are that petitioner's company being specialized firm in the manufacturing of Pre-Fab Housing, Porta Cabins, Pre-Cast House and Mobile Houses has been supplying not only to domestic market but has also been catering to international market for nearly three decades. Respondents Nos.2 and 3 vide letter dated 10-10-1985 and subsequent lease deed dated 23-7-1986 allotted two acres of plot at Hattar Industrial Estate to Messrs Khalid Construction Company Ltd., for the purpose of setting up Fabricated Housing Industry.

Respondents Nos.2 and 3 cancelled the allotment in favour of petitioner's brother Muhammad Kamran, which was restored and respondent No,3 executed a registered lease deed dated 4-3- 2008 with the petitioner. On 13-2-2010 a Qabza group in connivance with respondent No,3 forcibly took over the possession of the factory from the petitioner and the matter was reported to the local police. Petitioner filed representation for restoration of possession of plot and also addressed a letter to respondent No,3. On 11-10-2010 petitioner received a letter dated 2-2-2010 whereby his plot has been cancelled and it has been allotted to respondent No,4.

3. Arguments of learned counsel for the parties at great length have been heard and available record gone through with their valuable assistance.

4. Record reveals that impugned cancellation order of disputed plot was passed on 2-2-2010 and was dispatched by the department/official respondents on the same day through registered post.

The original dispatch register and postal receipt were produced before the Court. According to section 27 of the General Clauses Act, 1897, the presumption of its receipt is there, unless and until receipt back unserved.

5. Before the cancellation order two notices were dispatched to the petitioner on 4-3-2009 and 9- 1-2010 but even then petitioner failed to make any response or remove the deficiencies. The petitioner was allotted/transferred the disputed plot through a lease deed, to hold the land for the terms of 99 years vide allotment letter dated 13-1-1986. Any violation of lease deed or terms mentioned therein involves factual controversy, which is out of the domain of High Court in its constitutional jurisdiction. Reliance is placed on the case titled "Miss Sayeda Saira Bokhari v.

Federal Secretary, Ministry of Housing and Works Government of Pakistan and 5 others" reported as 2011 M LD 10.

"Art.199---Constitutional petition-Maintainability--_-Cancellation of allotment of plot---Plot in question was allotted to the petitioner by the authorities and the petitioner had deposited requisite amount of the plot---Subsequently authorities issued a letter to the petitioner / allottee to get the refund of deposited amount---Validity---Relief claimed by the petitioner, was nothing less than the enforcement, fulfillment of contract/agreement arrived at with authorities, which was out of domain of High Court in its constitutional jurisdiction---Even otherwise petitioner being allottee of plot in question from authorities, could have many other available remedies like, specific performance, damages and allotment of a substitute plot as offered by the authorities to the petitioner---Constitutional petition was dismissed".

6. The lease deed is in fact contract between the parties and the contractual obligation cannot be enforced through writ petition.

7. As already held that impugned cancellation order was issued on 2-2-2010 whereas the writ petition has been filed on 22-6-2011 i.e, after about one year and four months, hence, the same is hit by the principles of laches, which defines "reasonable time" and "reasonable time" has been interpreted in different rulings as 120 days (four months) ( See: 2012 CLC 1729); and during this time the disputed plot has been allotted to respondent No,4, therefore, at this stage no writ can be issued rather petitioners have many other remedies available like filing of suits for specific performance of contract and damages etc. Further, arbitration clause had been provided in the contract / agreement deed for resolution of any dispute or difference arising out of the agreement deed. In the case of "Messrs Syed Bhais (Pvt.) Ltd. Through Director v. Government of Punjab through Secretary Local Government and 3 others reported as PLD 2010 Lahore 52", it was held as under:-- "Art.---199---Constitutional jurisdiction of High Court---Scope--Contractual obligation--- Arbitration clause mentioned in the contract-Disputed questions of fact-- Controversy between the parties hinged upon the pivotal point as to whether the physical work (construction) executed by the petitioners was in accordance with the contract or not---Such question, held, could not be resolved by High Court in exercise of constitutional jurisdiction under Art. 199 of the constitution, as the court had no mechanism to resolve the question involved---Where the disposed questions of facts had been raised, particularly when floating as the surface of the record and arbitration clause was provided in the contract, constitutional petition was not maintainable, however, each case had to be decided on its own peculiar facts and circumstances".

8. In view of the above, instant writ petition being bereft of merit is hereby dismissed. No order as to costs.