ABDUL RAUF Versus CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD

This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan is erected against the two orders of Capital Development Authority, one dated 2‑11‑1986 withdrawing the permission earlier accorded to the petitioners for the change of the use of the plot and the other dated 4‑11‑1986 whereby building plan submitted by the petitioners was returned to them.

2. Facts giving rise to this petition, briefly stated, are that Plot No. 56‑G ‑‑measuring 250 x 160 equivalent to 4444.4/9 square yards situate in the Main Civic and Business Centre on the North side of Blue Area (between G‑6 and F‑6),.Islamabad, originally earmaked for the construction of 2/3 storey building of cinema was purchased by one Mrs. Farzana Nisar through open public auction. She paid all the dues pertaining to the said plot to the respondent Authority. Later on, she sold the plot to the petitioners vide sale agreement dated 19‑5‑1986 and having received full consideration made an application to the CDA for transfer of the plot in the name of the petitioners. The application was accompanied by the pay order for Rs. 2,22,250 on account of transfer fee. This application was duly admitted by the respondent‑Authority on 19‑5‑1986 subject to verification. Transfer of the plot was approved by the respondent‑Authority on 22‑6‑1986 and a formal letter conveying the transfer was sent to the petitioners which they received on 3‑7‑1986. This letter was, however, unsigned. In the meantime, another letter dated 7‑7‑1986 was sent by the Authority to the petitioners requiring Mazhar Javid, one of the petitioners to submit an affidavit regarding his signatures on the transfer application as it did not tally with the signatures on the identity card. Mazhar Javid submitted the requisite affidavit whereafter the unsigned letter of transfer dated 3‑7‑1986 was signed by the Deputy Director, Estate Management Directorate on.13‑8‑1986.

3. After the admission of the application for transfer of the plot in the name of the petitioners, they applied to the respondent‑authority for permission to use the plot m question for commercial purposes instead of the construction of the Cinema building. According to the respondent, however, this application was made to the Member (Planning) of the, CDA who under the charter of his duties was not authorised to receive it. Be that as it may, the application for permission to change the use of the plot was allowed by the Board of the CDA on 20‑7‑1986 ` and the sanction was formally conveyed to the petitioners vide letter dated 27‑7‑1986 (Annex H) for the change of the land use from Cinema building to a Commercial Building. It was stated that the sanction was granted on the following conditions:‑‑

"(1) You are allowed to construct ground plus two storeys with a mezzinine floor and basement.

(2) Provision for a smalli restaurant, shop for handicraft and an art gallery should be provided.

(3) You have to schedule the programme for the construction in a way to complete the buildings in two years from the date of issue of this letter."

4. Case of the petitioners is that after receiving the aforementioned sanction/approval, they took the following steps towards the construction of the building:‑‑

"(i) They got prepared the design and structure plans and submitted the same to the respondent authority for approval alongwith the fee of Rs. 3,000 vide Pay Order No.131833, dated 26‑10‑1986.

(ii) They entered into an agreement dated 11‑8‑1986 (Annex `I') with Saeed Associates, Consultants, Architects and Engineers, Islamabad to implead their project and paid them two instalments of Rs. 2,50,000 each representing 4% of the total cost of the project.

(iii) They entered into an agreement (Annex K) with M /s. Ch. Builders, Government Contractors, Architects and Engineers Islamabad on 11‑10‑1986 for completion of the entire construction work and paid them Rs. 43,22,880' as mobilization advance vide Annexures K to K/3.

(iv) They also executed agreements with two private parties (Annex L and M) for leasing out to them office/ship accommodation in the Shoppirng/Office Complex to be constructed and received from each of them advance rent of Rs.10,04,400 and Rs. 7,38,720.

(v) Petitioners also paid a sum of Rs. 60,00 as model expenses and Rs. 15,000 as coloured perspective expenses vide Annexure N.

5. Grievance of the petitioners is that after they had taken the aforementioned steps towards the construction of the plot, they received the impugned letters withdrawing the sanction already granted for the change of the utilization of the plot from Cinema to Commercial building and returning the ‑ building plan.

6. Respondent in its written statement has admitted that the plot in dispute was purchased by Mrs. Farzana Nisar and that on her application moved on 19‑5‑1986, it was transferred to the petitioners and the transfer was approved by the Authority on 22‑6‑1986.' It is also admitted that a formal transfer letter (unsigned) was issued to the petitioners on 3‑7‑1986 though it is stated that it was despatched erroneously., it is, however, admitted that the transfer letter was subsequently signed and issued to the petitioners on 13‑8‑1986 after Mazhar the petitioner had submitted his affidavit regarding his signatures. As regards the petitioners' application for permission to change the use of the land from Cinema to Commercial building, it is stated by the Authority that the petitioners applied on 20‑6‑1986 to the Member (Planning) who was not authorised to receive such an application. According to the respondent‑Authority, Deputy Director (Architecture) at the instance of the Member (Planning) recommended the petitioners' application in his note dated 3‑7=1986. His recommendation was that the allottees may be allowed a limited commercial use; mixed activity such as restaurant and shops for specific use of handicraft and art work may be permitted and the allottees be asked to permit a place for a small Art Gallery. Case was then put up by the Member (Planning) to the Chairman, CDA on 8‑7‑1986 asking him to agree to the proposal of Deputy Director in view of the precedent cited by him. The Chairman made the following observations on 9‑7‑1986:

"Had we auctioned the plot for commercial use, I am sure the price obtained in the auction would have been many times the price for a Cinema plot."

The man also sought information to the following effect:‑‑ "as to what price per square yard was forthcoming by the auction of the plot for Commercial use in the Blue Area during the year the Cinema plot was auctioned.

Position taken by the respondent‑Authority is that the Member (Plaining) instead of asking for the information required by the Chairman raised a whoily different query namely (i) when was Plot No. 56/G/6 Auctioned and (ii) on what ground the commercial Plots Nos. 1‑A, 1‑B, 1‑C, 1‑D and 1‑E were let out at the rate of Rs. 46 Fed square yard and when?" Additional Director E/M vide for dated 16‑7‑1986 furnished the requisite information asked for by the Member (Planning). It is submitted by the Authority that neither the information required by the Chairman was furnished to him nor was the precedent of M/s. Faisal Hotel wherein the Board had decided to allow the change of land use on payment of differential price brought to his notice and the Member (Planning? instead cited the precedent of Plot No.1, Blue Area which was not relevant as the said plot was allotted by way of compensation for taking over Hotel Shehrzad. Thus in tire absence of the vital information, Chairman agreed to the proposal submitted by the Member (Planning) on 20‑7‑1986 and on the same day, the Deputy Director (Architecture) issued letter to the petitioners conveying the decision of the Board. Precise objection of the respondent‑Authority is that permission for the change of the use of the land was secured by the petitioners in collusion with the CDA staff by making false representation and by withholding the vital information and precedent on the subject which amounted to commission of fraud on the decision making Authority. The respondent Authority also denied the petitioners' averments regarding the various agreements and financial commitments allegedly made by them m pursuance of the permission granted by the Authority for utilizing the plot for commercial purposes.

7. Before proceeding further, it may be worthwhile to reproduce both the impugned orders. Order withdrawing the permission for the change of the use of the plot reads as follows:‑‑

"The Board of CDA has reviewed the case regarding change of land use of Plot No. 56‑G, Blue Area, F‑6, G‑6 and has decided that the plot should be used only for the. purpose for which it was auctioned i.e. for the construction of Cinema Building. It has also been observed that you made misrepresentation of facts posing as the "Owner" of the plot, whereas at the time of making the application for change of land use you had no locus standi as you were not the allottee of the above plot.

Permission for change of land use of the above‑mentioned plot is hereby withdrawn.

It is to inform you that the CDA Board has reviewed the case regarding change of land use of the subject plot and it has been decided to withdraw the permission for change of use. of plot. The plot shall be used only for the purpose for which it was auctioned i.e. for the construction of Cinema.

In view of the above, building plans along with Bank Draft No. PO‑03 131833 dated 26‑10‑1986 for Rs. 3,000 are returned herewith."

8. Learned counsel appearing in support of this petition assailed the validity of the impugned orders on the following grounds:‑‑ .

(i) That after the permission granted by competent Authority for the change of the use of the plot was conveyed to the petitioners and they had also acted upon it and made huge financial commitments in taking necessary steps towards the construction of the commercial building, there was no power left in the . respondent Authority to recall/withdraw the permission in question. Reliance for this was placed on the following Authorities:‑‑

(1) P L D 1956 FC 46 (Shahbaz v. Crown).

(2) P L D 1960 SC 310 (Pakistan v. Hussain Ali Shah).

(3) P L D 1964 SC 503 (Lt: Col. G.L. Battacharya v. State).

(4) P L D 1969 SC 407 (Pakistan v. Mohammad Himayatullah).

(5) P L D 1973 Quetta 14 (Sh. Muhammad Nawaz v. Secretary Irrigation).

(6) P L D 1980 Peshawar 128 (Muhammad Aslam Khaki v. Vice‑Chancellor Gomal University).

(7) 1980 SCMR 268 (State v. Muhammad Ismail and others).

(ii) That the approval /sanction for the change of the land use was granted by the Board of the CDA comprising the Chairman and the Director (Planning) but the same was withdrawn on the oral orders of the Chairman alone who was not competent to withdraw the order passed by the Board. Only the Board which passed the original order was competent to withdraw it but the Board admittedly passed no such orders.

(iii) That the reason given in the impugned order that the petitioners were not the allottees of the plot in dispute and, therefore, had no locus standi to ask for the change of its use is not tenable in law. It has also been wrongly stated in the impugned order that petitioners had misrepresented that they were owners of the plot. It was on the record of the CDA that the petitioners having purchased the plot from its allottee had applied for its transfer, in their name and transfer fee of Rs. 2,22,2.50 was also paid on 19‑5‑1986 which the Authority had accepted. In any case, transfer of the plot in the, name of the petitioners stood approved well before the permission for the change of its user was granted.

9. Learned counsel appearing for the respondent. on the other hand, argued that since the Authority had not taken any further step in implementation of the permission granted by it such as this sanctioning of the building plan etc., its, power to recall/withdraw its earlier order remained unfettered in view of the provisions of section 21 of the General Clauses Act as also on the principle o1 locus poenitentiae. According to the learned counsel, the so‑called steps allegedly taken by the petitioners (correctness whereof he seriously disputed) were of no avail to them for the simple reason that the sanction for utilising the plot for commercial purposes was procured by withholding/suppressing the material information. The respondent‑Authority was, therefore, not barred in any manner from revoking its earlier decision. In support of his submissions, learned counsel relied upon the following cases:‑‑

(1) P L D 1956 FC 46 (Shahbaz v. the Crown).

(2) P L D 1960 SC 310 (Pakistan v. Hussain Ali)

(3) P L D 1963 Lahore 53 (Dr. Mahboob Rabbani v. Government of West Pakistan).

(4) P L D 1964 SC 503 (Lt. Col. G.L. Battacharya v. State).

(5) P L D 1969 SC 407 (Pakistan v. Mohammad Himayatullah).

(6) P L D 1979 Q;.ietta 13i (Munir Ahmad v. University of Baluchistan).

(7) 1981 SCMR 604 (Shameer v. Board of Revenue etc.).

(8) P L D 1984 Karachi 522 (Messrs Firdous Spinning and Weaving Mills Ltd. and others v. Federation of Pakistan and 2 others).

In reply to the second point aforenoted canassed on behalf of the petitioners, learned counsel for the respondent submitted that according to the Regulations/Rules, of Business framed by the Authority under section 51 of Capital Development Authority Ordinance, 1960, the subject of estate management was assigned to the Chairman and, therefore, he was fully competent to pass the impugned order withdrawing the sanction granted for the change of the land use. Learned counsel, however, did not deny that the permission/sanction for the change of the use of the plot was granted by the Board and that the Board has not passed any order withdrawing/ recalling the said sanction.

With reference to the third ground pressed by the petitioners, learned counsel for the respondent‑Authority reiterated the positron stated in the impugned order and submitted that it was correct that the petitioners were not the owners of the plot in dispute at the time when they made the application for change of the use of the plot.

10. It may be noted at this stage that during the course of hearing of this petition, learned counsel for the respondent produced photo copies of the official record of the CDA which were placed on the present record with the consent of the learned counsel for the petitioners and arc marked R‑4, R‑5 and R‑6. R‑4 is a copy of the proceedings relating to the grant of the aforesaid permission. R‑6 is a report dated 2‑10‑1986 which the Director Enforcement submitted to the Chairman pointing out therein how the query raised by the Chairman was ignored and the facts were not correctly represented. R‑5 is a copy of the Note of the Chairman dated 2‑11‑1986 wherein it was directed that the order/permission Authorising the change in the use of plot for commercial purpose be withdrawn and the plot should be utilized only for the purpose for which it was auctioned.

11. I now take up the question of locus poenitentiae on which both the learned counsel addressed elaborate arguments and also cited the case‑law noted hereinabove. Cases cited at the Bar by either side need not be discussed in detail as there seems to be consensus of judicial opinion that the authority that has the power to make an order has also the power to vary, rescind or recall it and that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae i.e. the power of receding till a decisive step is taken, is available to tire Government and to the relevant authorities. It has been observed that in fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace tile wrong steps taken by them. But this rule is subject to the exception that where the decisive step has been taken or where the order sought to be resci1rdicd/recalled has taken legal effect, and in pursuance thereof, certain rights have been created in favour of an individual, locus poenitentiae comes to an end and the order cannot be rescinded or withdrawn thereafter to the detriment of those rights. Refer "Shahbaz v. Crown" and Pakistan v. Himmayatullah" aforementioned. However, if the order was secured through fraud or misrepresentation different considerations would arise as no person can be allowed to take benefit of his own fraud and action can be initiated as and when fraud comes to the knowledge of the authorities concerned. Refer "Venkatesh Yeshwant Deshpande v. Experor" (AIR 19:18 Nagpur 513) wherein it was observed, though by way of obiter, that fraud and mistake may give rise to other considerations. Precise observation mad‑ therein was "I do not say that an order of remission is never open to recall. It may be in certain circumstances; fraud and mistake for example might justify such action. But I am clear that is cannot be done arbitrarily." Reference in this behalf may also be made to the cases reported in PLD 1979 Quetta 131 and P L D 1980 Peshawar 128. in the Peshawar case, it was held that the petitioner therein having been selected for admission in the Institute of Education and Research, University of the Punjab and duly informed thereof, there was no power left with the Vice‑Chancellor of Gomal University to recall his recommendations on the basis which the petitioner was granted admission, "unless it could be shown that they were secured from him by fraud .." Thus the position regarding the principle of locus poenitentiae boils down to this. An authority passing an order can vary, cancel or withdraw but once the decisive step has been taken and the order has become effective and operative creating certain rights in favour of an individual, the power of receding is no more available to the relevant authority with the result that the order cannot be modified, withdrawn or cancelled thereafter unless, of course, the order was secured through fraud or misrepresentation.

12. Question as to what constitutes the decisive step and when can it be said to have been taken whereafter the power to recede is not available depends on the facts of each particular case. "Shahbaz v. Crown" referred to above which, it appears, is the first case of its nature from Pakistan jurisdiction. Order of remission of sentence was directed to take effect on 14th August, 1954. However, before the order could be given effect to, it was cancelled on 13th August. In these circumstances, it was held by their Lordships of the Federal Court that since the decisive step had not yet been taken and even the .stage for giving effect to the order of remission had not yet reached, locus poenitentiae was available to the authorities. In the case of Bhattacharya, order of the Provincial Government of the then East Pakistan remitting the sentence of the prisoner was communicated to the Superintendent, Jail who hawing received it recorded it in the prisoner's `History Ticket'. It was held by a Full Bench of the High Court of East Pakistan (PLD 1963 Dacca 42 ) that the decisive step had been taken and the subsequent cancellation of the order of remission was of no legal effect. It was observed at page 43$ of the Report that "h: the present case it is clear that the order was acted upon in the sense that the Provincial Government has done every thing that was necessary for it to do to give. elect to the order. A right has already accrued upon the petitioner to claim the advantage given to him under the said order, whatever may be the nature of such right, when the order was communicated to the relevant authorities and was recorded in the `history ticket' of the petitioner. It is patent that the criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. It, therefore, follows that the subsequent `order of cancellation dated the 3rd of September, 19(2, can have legally no effect whatsoever." The view taken by the High Court of East Pakistan was affirmed by the Supreme Court when the matter came up before it on appeal. Their Lordships observed that the remission order became effective when it was communicated to the Jail Superintendent who gave effect to it by noting it in the prisoner's `history ticket.' In PLD 1963 Lahore 53, petitioner on the even of his retirement, was sanctioned earned leave for 28 days w.e.f. 13th September, 1957. The order was duly notified in the official Gazette dated the 27th September, 1957. Leave so granted was, however, subsequently cancelled vide letter dated 7th August, 1958. It was held by a Division Bench of this Court that the leave‑granting order became operative w.e.f. the 13th September, 1957 and the petitioner became entitled to enjoy the leave as from that date and it could not be withdrawn or cancelled subsequently. Again in the case of `Himayatullah' afore‑referred, it was observed that the order fixing the basic salary having been duly communicated to the Government servant concerned and the relevant Ministry, it had taken legal effect and its implementation thus ensured, it could not subsequently be revoked. This question also came to be examined in PLD 1973 Quetta 14 wherein it was observed that according to the dictum laid down by the Supreme Court in the cases of `Bhattacharya' and `Himayatullah', as soon as an order of the competent authority was communicated to an Agency or Officer who is required to carry it out, order is deemed to have become effective. It was accordingly held on the facts of the case that the order of reinstatement of the petitioner therein having been communicated to him and to the Chief Engineer who was bound to carry it out as also to the Accountant‑General, it would be deemed to have become effective when it was so communicated.

13. Viewed in the light of the principles aforenoted, it appears that once the order permitting the change of the use of the plot was conveyed to and received by the petitioners, it had become legally effective and operative as the authority concerned in view of the nature of the order involved in the case was not required to do anything more to make it effective. A right had thus accrued to the petitioners to take the benefit given to them under the said order. In the circumstances, locus poenitentiae was ordinarily not available to the relevant authority. This, however, does not conclude the matter as the learned counsel appearing for the respondent vehemently contended that the permission for commercial use of the plot having been secured through fraud and misrepresentation, it could well be withdrawn even after it was communicated to the petitioners. Fraud and misrepresentation, according to the learned counsel, consisted in withholding the information asked for by the Chairman of the CDA when the case for the grant of permission in question was placed before him. It was pointed out by the learned counsel that the Chairman had raised a query as to what price per square yard was forthcoming by the auction of the plot for commercial use in the Blue Area during the relevant year which query was not answered and instead precedent of a plot allotted in altogether different circumstances was quoted. I quite agree with the submission of the learned counsel on the legal place that an order based on fraud and/or misrepresentation can be recalled/rescinded by the relevant authority on the fraud/misrepresentation coming to its knowledge but this proposition in the facts and circumstances of the case does not appear to be of any avail to the respondent. It may be noted that the `misrepresentation' alleged against the petitioners in the impugned order was that they posed as owners of the plot whereas at the time of making the application for change of the use of the land, they had no locus standi as they were not the allottees of the plot. Position appears to have been misconceived by the authority passing the impugned order. Petitioners did not make any misrepresentation m stating that they were the owners of the plot. It is admitted position that the petitioners had purchased the plot in dispute from its previous allottee on 19‑5‑1986 and an application was made to the CDA on the same day for transfer of the plot in the name of the petitioners. Transfer fee of Rs. 2,22,250 was also paid on that very day. In the circumstances, petitioners could legitimately claim that they were the owners of the plot in dispute. In any case, transfer of the plot in the name of the petitioners was duly approved by the respondent‑authority. on 22‑6‑1988 i.e. well before the permission for change of the use of the plot was accorded. That being so, neither the allegation of misrepresentation made in the impugned order was well‑based nor was the petitioner's locus standi open to any valid objection. It is not the case of the respondent that only the original allottee and not the transferee from him could‑apply for the change of the use of the plot. The impugned order thus cannot be sustained.

As regards the ground on which the impugned order has now been sought to be defended namely the withholding/suppression of material information aforestated, suffice it to observe that this was not made the basis of _ the impugned order. In fact, the impugned order is conspicuous by absence of any reference to the species of fraud/misrepresentation now being agitated. That being so, I do not feet inclined to record any finding in these proceedings on the question of fraud/misrepresentation aforementioned particularly when the impugned order is being struck down on other grounds leaving it open to the competent authority to press this ground when passing fresh order which, of course, shall be passed after affording opportunity of hearing to the petitioners so as to enable them to meet this allegation of fraud/misrepresentation.,

14. I also find considerable force in the contention of the learned counsel for the petitioners that, the Chairman alone was not competent to pass the impugned r order. It is admitted that the order granting the permission for change of the use of the plot was passed by the Board comprising the Chairman and the Director (Planning). That being so, order withdrawing the permission, too, should have been passed by the Board. It was admitted by the learned counsel for the respondent that the power of the Board was not delegated to the Chairman. He, however, argued that the Chairman was competent to pass the impugned order as the function of Estate Management was assigned to him by virtue of the Regulations framed under section 51 of the Capital Development Authority Ordinance, 1960. This argument has not impressed me because only the authority passing the earlier order was competent to withdraw or cancel.

Upshot of the above discussion is that the impugned order dated 2‑11‑1986 withdrawing the permission granted for the change of the use of the plot having been passed by an incompetent authority and for reasons not tenable in law and on facts is declared to be without lawful authority and of no legal effect. Consequential order dated 4‑11‑1986 returning the building plan to the petitioner is also set aside. It is, however, left open to the competent authority to pass a fresh order on the alleged ground of fraud /misrepresentation (pressed in the present proceedings), of course after affording opportunity of hearing to the petitioners to enable them to meet the allegation of fraud/misrepresentation There shall be no order as to costs in the facts and circumstances of the ease.

M.Y.H./A‑441/L Petition allowed.