MUHAMMAD RAFIQUE Versus M.D. A.

This single judgment shall dispose of Writ Petitions Nos.736/95, 2489/95, 2227/95, 449/96, 5399/95, 2700/95, 1059/95, 5834/95, 1776/94, 4547/9.4, 745/95, 718/95, 657‑A/95, 2812/95, 2221/95, 1961/95, 768/95, 6523/95, 5339/94, 2150/95, 2977/95, 3560/94, 5448/95, 5663/95, 5664/95, 5206/96, 6265/95 and 2830/95 having identical subject‑matter, some of the writ petitions are admitted for regular hearing while the others not admitted may be considered as admitted cases. In all these writ petitions the petitioners have challenged the action of the respondents serving them with notices on. different dates and levying a penalty for failure of non‑deposit of call deposit.. In some of the writ petitions the respondent‑department has cancelled plots for non‑deposit of the security. Each writ petition bears different facts, therefore, they are narrated individually:‑‑‑

Writ Petition No.736 of 1995

2. The Respondent‑Department through its Director Estate and Land Management, Multan advertised residential scheme known as "Shah Rukan‑e -Alam (Phase. II), Mulan through advertisement in daily Nawa‑i‑Waqt, Multan and daily Jang, Multan on 20‑6‑1985 and 11‑5‑1985 respectively. This advertisement was for the allotment of 3/5/10 Marla and 1 Kanal respectively. The last date for receipt of the applications from the public was 30‑6‑1985.

3. In this writ petition the petitioner Muhammad Rafiq applied for 10‑Marla plot and on 15‑11‑1985 he was allotted Plot No.F/278, in Shah Rukan‑e‑Alam Housing Scheme, Multan. He deposited price of the plot at the rate of Rs.3,500 per Marla apart from development charges and was given possession of the said plot.

Writ Petition No.2489 of 1995

4. Muhammad Ashraf petitioner was allotted Plot No.E/348, measuring 5 Marlas in Shah‑Rukan‑e‑Alam Housing Scheme, Multan (Phase.II) being successful as such vide Letter No.2554 dated 15‑11‑1985 deposited total price of Rs.17,500 at the rate of Rs,3,500 per Marla. The petitioner took possession of the plot as per N.O.C. issued by the respondent and sale agreement was also executed on 16‑3‑1992 with the respondent No.2 after payment of total price and the petitioner completed construction of the building upto 27‑6‑1994 as per building plan and due to non‑payment of security the petitioner was issued the impugned notice dated 22‑1‑1995.

Writ Petition No.2227 of 1995

5. The petitioner was allotted Plot No.G/57 measuring 10 Marlas in Shah Rukan‑e‑Alam Housing Scheme (Phase.II) Multan vide allotment order No. 1707/EM/MDA dated 15‑11‑1985 and was delivered possession of this plot vide letter dated 23‑6‑1990. He deposited partial amount of Rs.10,000 plus khaka fee Rs.10 on 19‑12‑1985 and another amount of Rs.5542 was deposited on 16‑11‑1987 for the period from 1‑1‑1986 to 30‑7‑1987, and then an amount of Rs.25,000 as remaining amount alongwith interest was deposited vide challan dated 19‑7‑1987 and thus the petitioner has satisfied the entire dues. Due to non -deposit of the security the petitioner was issued a notice dated 8‑1‑1995.

Writ Petition No.6523 of 1995

6. The petitioner was allotted Plot bearing No.E/777 in Housing Scheme Shah Rukn‑e‑Alam, Phase.II, Multan by the.M.D.A. vide allotment Order No.3275 dated 15‑11‑1985. The price of the aforesaid plot was fixed at Rs.3,500 per Marla and total amounting to Rs.17,500 was paid by the petitioner on 10‑2‑1986. Possession of the said plot was also handed over to the petitioner vide certificate No.432 dated 23‑8‑1989 and an agreement of sale was executed between the parties. Due to non‑deposit of the security the petitioner was served with a notice dated 8‑1‑1995.

Writ Petition No.449 of 1996

7. The petitioner was allotted Plot No.K/8 measuring 10 Marlas 300 Sq. Yards in housing scheme Shah Rukan‑e‑Alam Phase.II, Multan. This plot was allotted to the petitioner in the year 1985 vide allotment Letter No. 1690/EM/MDA, dated 15‑11‑1985 at the rate of Rs.3,500 per Marla. The petitioner has paid the entire amount through instalments about the said plot, possession was delivered in favour of the petitioner and the petitioner also signed agreement of sale after full payment. The petitioner has also obtained completion certificate from the M.D.A. in 1990. Due to non‑payment of the security the petitioner was served with a notice dated 3‑12‑1995.

Writ Petition No.5399 of 1995

8. The petitioner was allotted Plot No.K/21, measuring 10 Marlas Phase.II, in housing scheme Shah Rukan‑e‑Alam, Multan vide order dated 15‑11‑1985; is possession was handed over to her vide Order No.11233/EM/MDA dated 18‑7‑1989 and has paid all dues and the sale agreement also stands executed in her favour by the respondent M.D.A. Due to non‑payment of security the petitioner was served with a notice dated 8‑1‑1995.

Writ Petition No.2700 of 1995

9. The petitioner was allotted Plot No.A/641 measuring 10 Marlas in the aforesaid scheme through drawing of lots held on 21‑10‑1985. The said plot was cancelled from the name of the petitioner due to non‑payment of price. The petitioner re‑applied on 24‑6‑1989 for restoration of the same and was alternatively allotted Plot No.629/E vide order dated 16‑5‑1990 after depositing the whole price of the plot. She has constructed a house and a certificate of completion stands issued in her name on 3‑1‑1993. Due to non‑payment of the dues the petitioner was served with a notice dated 22‑1‑1995.

Writ Petition No. 1059 of 1995

9. The petitioner got Plot No.435/F, measuring 10 Marlas in Shah Rukan e‑Alam Scheme (Phase‑II) Multan from the original allottee namely Muhammad Anwar son of Muhammad Islmail through agreement dated 26‑12‑1989. The original allottee‑ had fulfilled all procedural requirements of allotment on 9‑9‑1985 and an allotment order was issued on 15‑11‑1985 by the respondent No.3, confirmation was done by the allotment committee of M.D.A. on the same date. In this way the original allottee paid full price of the plot; letter of possession was issued to him on 25‑7‑1987 and certificate of handing over possession was issued on 1‑8‑1987. The completion certificate was also issued to the petitioner by the respondent. Due to non‑payment of security the petitioner was served with the impugned notice dated 17‑1‑1995.

Writ Petition No.5834 of 1995

10. The petitioner was allotted Plot No.311/F measuring 300 sq. yards in the aforesaid scheme on 21‑10‑1985. The petitioner deposited price of the aforesaid plot amounting to Rs.46,126 through different challans; the petitioner was handed over possession of the plot and constructed four walls on the plot and thereafter a house. On 17‑1‑1995 the petitioner received a notice‑from the M.D.A. that the allotment of the petitioner was a bogus one so the petitioner should deposit more amount of Rs.12,000 per Maria as a penalty in the accounts of the M.D.A. and it was also mentioned in that notice that the market price Rs.13,500 and its 50% i.e. Rs.6,000 would be received from the petitioner as a fine.

Writ Petition No. 1776 of 1994

11. The petitioner was allotted Plot No.J‑753 measuring 10 Marlas in Shah Rukan‑e‑Alam Scheme, Phase.II, Multan as per intimation letter No.3364‑EM M.D.A. dated 15‑11‑1985. The petitioner paid Rs.20,000 plus Rs.1,500 as 14% interest plus Rs.10 as site plan fee. The petitioner could not deposit the amount of Rs.15,000 and consequently the plot was cancelled from her name. Through re‑conciliation with the M.D.A. after depositing fee of Rs.3,500 the petitioner was allotted plot No.L.349. The petitioner paid Rs.51,596; completion certificate was issued in her favour but she had not deposited the security. She was served with a notice on 13‑4‑1994 for deposit of Rs.45,000 in 10 Marlas as a fine for not depositing the surety amount at the time of allotment.

Writ Petition No.4547 of 1994

12. The petitioner was allotted Plot No.188‑A/B in the aforesaid housing scheme (Phase I). He paid the entire amount and the possession was delivered to him on 11‑8‑1986 and the completion certificate was issued on 20‑7‑1992. The petitioner entered into an agreement of sale with one Muhammad Ashraf in consideration of Rs.1,87,000 and deposited transfer price of Rs.10,000. The transfer of the property to the subsequent vendee was refused by the M‑D.A. while holding it a bogus allotment for non‑payment of the security. This refusal has been challenged through the instant writ petition.

Writ Petition No.745 of 1995

13. Plot No.753/J measuring 10 Marlas was allotted to Ghulam Hussain original allottee in the aforesaid housing scheme and subsequently transferred to the petitioners. They paid the entire price. Due to non‑deposit of security they were served with the impugned notice.

Writ Petition No.718 of 1995

14. The petitioner got Plot No.390/L, measuring 5 Marlas in the aforesaid housing scheme from the original allottee namely, Nazeer Ahmad Bhatti through agreement dated 21‑10‑1990 and special power of attorney dated 21‑10‑1990. After fulfilling all requirements and formalities he was issued possession certificate dated 29‑10‑1990 and a completion certificate was also issued. He was served with the impugned notice dated 8‑1‑1995 for non‑deposit of dues.

Writ Petition No.657 of 1995

15. Plot No.561/E measuring 172.22 sq. yards was allotted to the petitioner vide allotment order dated 15‑11‑1985 in the aforesaid housing scheme. He deposited the entire price of Rs.22,617 and completion certificate was issued to him on 8‑10‑1992. He was served with the impugned notice for non‑deposit of the security.

Writ Petition No.2812 of 1995

16. Plot No.232/F in the aforesaid housing scheme was allotted to Mst. Quratul Aen vide allotment Order No.2304/EM/MDA, dated 15‑11‑1985. She entered into an agreement of sale with the present petitioner vide agreement dated 28‑6‑1988 in lieu of Rs.80,000. The original allottee had paid the entire price and the possession was handed over to the original allottee which was later on transferred to the present petitioner on 13'‑8‑1992. All dues stands cleared. Now the petitioner is served with the impugned notice dated 17‑1‑1995 for non- payment of outstanding dues.

Writ Petition No.2221 of 1995

17. The petitioner was allotted Plot No.J/746 measuring 10 Marlas on 15‑11‑1985 in the aforesaid housing scheme. He paid the entire amount of Rs.38,487; completion certificate was issued in favour of the petitioner on 10‑12‑1989. He was served with the impugned notice dated 2‑1‑1995 for non‑payment of security.

Writ Petition No. 1961 of 1995

18. Muhammad Mohsin Javed, Ghulam Fatima and Muhammad Saeed petitioners are the allottees of Plots Nos.595/K, 630/K and 631/K in the aforesaid housing scheme. The allotment was made to the petitioners on 15‑11‑1985 through drawing of lots. The petitioners have paid the entire price and completion certificate were granted to them on 11‑3‑1991, 14‑4‑1993 and 10‑4‑1991 respectively. They were served with the impugned notices dated 2‑1‑1995 for not depositing the security.

Writ Petition No.768 of 1995

19. The petitioner was initially allotted Plot No. 196 in draw of plot dated 15‑11‑1985 but subsequently he was given Plot No. 197/E in the 'aforesaid housing scheme. After the allotment of the plot, the petitioner deposited the price of the plot and the possession was handed over to him on 28‑10‑1986 and the sale agreement was executed on 13‑1‑1987. He was served with the impugned notice dated 8‑1‑1995 for non‑deposit of the security.

Writ Petition No.5339 of 1994

20. Plot No.F‑81, measuring 10 Marlas was allotted to the petitioner on 15‑11‑1985 in the aforesaid housing scheme; the entire amount of Rs.40,115 stands paid; possession delivered on 6‑1‑1987; compliance certificate issued and the sale agreement was executed on 7‑7‑1987 with the respondent/MDA after payment of total price of Rs.36,297. The petitioner was served with the impugned notice for non‑deposit of the security.

Writ Petition No.2150 of 1995

21. Plot No.594, measuring 10 Marlas was allotted to the petitioner on 21‑10‑1985 in the aforesaid housing scheme; confirmation of the allotment of the said plot in the name of the petitioner was communicated to him vide Memo No.2383/EM/MDA dated 15‑11‑1985. In compliance of the abovesaid Memo the petitioner deposited an amount of Rs.15,010 as part payment of the sale price alongwith khaka fee and again a sum of Rs.15,442 was deposited as second instalment alongwith penal interest and finally an amount of Rs.5,098 was deposited as arrears of sale price including the interest, and as such nothing was outstanding against the petitioner. Ultimately the possession slip was issued and the petitioner occupied the plot allotted to him under the law.

22. Subsequently the Deputy Director‑II, Town Planning, M.D.A. informed the petitioner that there was some excess area in the plot transferred to him. For this the petitioner paid all dues meant for the excess area. On 10‑2‑1991 the petitioner further paid an amount of Rs.1,307 as interest of the sale price of the excess area and finally the amount of Rs.2,668 was deposited. The petitioner, thus, paid the entire dues to the respondents and nothing was due against him. Later on the petitioner completed construction over the said plot to the entire satisfaction of the M.D.A. whereupon the petitioner was issued a completion certificate. The petitioner was served with the impugned notice dated 2‑1‑1995 for paying further Rs.13,500 per Marla with the respondent No. 1.

Writ Petition No.2977 of 1995

23. The petitioner purchased Plot No. 187/E, measuring 10 Marlas, situated in Shah Rukan‑e‑Alam Housing Scheme, Multan from one Hakim Muhammad Yasin respondent No.4 on 7‑8‑1991 and in pursuance of the transaction inter se the parties transfer Letter No.2894 dated 12‑8‑1991 was issued in his favour. The entire amount stands paid by the respondent No.4. The respondent No.4 constructed house/building in accordance with the sanctioned plan and a completion certificate was issued in favour of the respondent. As the petitioner is the purchaser of the plot from respondent No.4, the respondent No.3 has issued a notice dated 8‑1‑1995 to the petitioner and has demanded Rs.13,500 per Marla alleging that the petitioner did not append with the application as security a Bank draft or call deposit without which the application for the allotment of the plot could not be included in the draw and the name of the allottee was not included in the list of successful allottees. Hence this writ petition.

Writ Petition No.3560 of 1994

24. The petitioner obtained Plot No.F/231 measuring 10 Marlas situated in the aforesaid housing scheme from the Haroon Arshad Saleemi respondent No.4 who paid the full price of the plot Rs.50,178. After having cleared all dues and payments Haroon Arshad Saleemi respondent transferred Plot No.F/231 with permission of M.D.A. in favour of the petitioner and the petitioner became full owner of the said plot. Due to non‑payment of the security the petitioner has been served with the impugned notice dated 13-4‑1994.

Writ Petition No.5448 of 1995

25. Plot No.K/61 measuring 10 Marlas was allotted to the petitioner in the aforesaid housing scheme; possession of the same was also handed over to the petitioner by the M.D.A. vide Order No.4801‑02 dated 31‑7‑1989; all the dues according to the allotment order dated 15‑11‑1985 were paid to the Department by the petitioner and the allotment after executing sale agreement between the parties was confirmed and possession was delivered to the petitioner. Now the respondent No.2 has issued impugned notice dated 8‑1‑1995 stating that an irregularity was committed regarding the allotment of the plot in question and has imposed penalty to the extent of Rs.13,500 per Marla. Hence this petition.

Writ Petition No.5663 of 1995

26. The petitioner was allotted Plot No.E/545 in the aforesaid housing scheme measuring 300 sq. yards; the petitioner deposited the price of the plot on 28‑12‑1985 amounting to Rs.33,010 and Rs.2088 was also deposited vide Challan No.6912‑EM/MDA dated 23‑4‑1986, after that the petitioner was given possession of the plot and the petitioner constructed four walls on the plot. On 1‑1‑1995 the petitioner received a notice that the allotment of the plot was a bogus one so the petitioner should deposit more amount of Rs.13,500 per Marla as penalty. Hence this petition.

Writ Petition No.5664 of 1995

27. Plot No:E/546 measuring 300 sq. yards was allotted to the petitioner in the aforesaid housing scheme by the M.D.Ai The petitioner deposited all the dues; possession of the plot was given to the petitioner and the petitioner constructed four walls on the plot. On 1‑1‑1995 the petitioner was served with the impugned notice stating therein that the allotment of the petitioner was bogus one so the petitioner should deposit more amount of Rs.13,500 per Marla as a penalty in the accounts of the M.D.A. Hence this petition.

Writ Petition No.5206 of 1996

28. Plot No.E/562 measuring 5 Marlas was allotted to the petitioner in the aforesaid housing scheme vide allotment order No.3357/EM/MDA, dated 15‑11‑1985. The petitioner deposited the full price and possession of plot was delivered to him on 20‑2‑1989. A sale agreement between the parties was also executed. The petitioner constructed one room and boundary wall. Now the respondent have served the petitioner with the impugned notice dated 17‑1‑1995 directing the petitioner to deposit penalty at the rate of Rs.13,500 per Marla as he has not deposited the security etc.

Writ Petition No.6265 of 1995.

29. Plot No.E/627 measuring 10 Marlas was allotted to the petitioner in the aforesaid housing scheme through allotment Order No.2453/EM/MDA dated 15‑11‑1985. The petitioner paid full price of the plot as well as penal interest; the Department handed over possession of the plot to the petitioner vide Letter No. 12404/EM/MDA dated 13‑9‑1987; the petitioner being an employee of the M.D.A. could not construct the house and only raised a shed on the plot and a tenant is living over there. It was later on came to the notice of the petitioner that the allotment of the aforesaid plot in favour of the petitioner had been cancelled and thereafter it was put to auction wherein respondent No.3 had come forward as a successful bidder and he had purchased the plot. The petitioner has prayed that cancellation of the allotment of the plot from the name of the petitioner and its auction by the M.D.A./respondents be declared to be illegal, ultra vires, mala fide, without jurisdiction and without lawful authority.

Writ Petition No.2830 of 1995

30. This writ petition is filed by Mst. Mehmooda the subsequent transferee of Plot No.365/E situated in the aforesaid housing scheme (measuring 10 Marlas) which was originally allotted to Akbar Ali respondent No.4 by the M.D.A. vide allotment letter dated 15‑11‑1985. According to the petitioner the original allottee has paid full price Rs.35,000 of the plot on 24‑12‑1985 and possession of the same was delivered to him by the Department. Later on possession slip was issued on 29‑3‑1989 by the Department to the original allottee and the allottee deposited fine of Rs.2,173 due to non‑construction of the plot. The site plan of the building was approved by the M.D.A. on 12‑5‑1990. Respondent No.4 also deposited additional amount of the plot Rs.1,206, Rs.732 and Rs.260 as desired by the M.D.A. Later on the original allottee executed agreement to sell in respect of the Plots Nos.365 and 365/E in favour of petitioner's husband Muhammad Raft for consideration of Rs.2,40,000 on 9‑8‑1990. Petitioner's husband paid total amount to respondent No.4 who executed receipt accordingly. After receiving the sale price the allottee handed over the vacant possession to petitioner's husband who constructed the same. Unfortunately, petitioner's husband Muhammad Rafique died on 16‑2‑1991 while the construction of the house was near to its completion. The same was completed by the present petitioner according to approved site plan and she deposited Rs.114 for grant of completion certificate on 31‑12‑1992. After construction of the house the petitioner alongwith minor sons and daughters shifted to the premises and is living in the house since 1992. She has challenged the impugned notice being violative of relevant law holding the allotment of the plot to the original allottee is not proper due to non‑deposit of call‑deposit. She has also categorically stated that she is filing the instant writ petition as she is the transferee with bona fide consideration and after passing of the money the original allottee is not taking any concern about the penal proceedings conducted by the Department. Therefore, she being an aggrieved party has filed the instant writ petition.

31. Learned counsel for the petitioners in all the writ petitions submit that the advertisement for the allotment of the plots in Shah Rukan‑e‑Alam Housing Scheme, Multan was just directory and it was not mandatory. Further submit that non‑payment of call deposit was due to negligence of the M.D.A. Lapse for non‑deposit of call deposit is attributable to the respondents and not to the petitioners and they cannot be penalised for the same after expiry of along period; the petitioners were successful in the draw, they deposited the entire amount of allotment without interference through out from the M.D.A. for non deposit of call deposit and in most of the cases completion certificates were also granted to the petitioners and permission for transfer of the same was also given to many of the petitioners. In many cases agreements were executed in favour of the transferees with consideration. If there was any irregularity in the initial process of the allotment for non‑deposit of call deposit, it was curable and it stood cured by allotment of the plots to the petitioners and handing over the possession then payment of the entire price by the petitioners, execution of the agreements in many cases, and completion of the certificate and also permission to transfer of the plots in many cases to the petitioners. The impugned notices are without lawful authority and jurisdiction for the reasons that the penalty was imposed upon the petitioners without giving them opportunity of hearing and hence are violative of natural and substantial justice. It is also violative of the principle of locus poenitentiate. Since this breach is rectifiable the respondents have no authority to cancel the plots allotted to the petitioners. It is further submitted that mode of payment is prescribed in para. B of the allotment order and under Notification dated 28‑1‑1982 the procedure to deposit the price of the plot is given. Under para. 4 of the aforesaid Notification the amendment in the procedure of allotment described. Instead of receiving Rs.5,000 p.m. through Bank call deposit, the applicant will deposit through cross‑cheque, Bank draft or pay order. It is further submitted that under the financial rules the definition of cash include legal tender, currency notes, cheques payable on demand, remittance transfer plus receipt demand, draft and also revenue stamps. A note below this paragraph is that the Government securities, deposit receipts of banks, debentures and bonds accepted as security bond are not treated as a cash. It is further submitted that the security mean to guard or guarantee. This security was to pay the entire price. Just for non‑deposit of security the petitioners in candid manner cannot be penalised nor their lots can be cancelled. It is further submitted that after the lapse of ten years the respondents have no justification to penalise the petitioners for non‑deposit of call deposit which is an omission and is curable. They are stopped by their own conducted as the respondents have rectified this breach in the meeting held in December, 1990 for allowing the allottees to deposit the entire price.

32. Learned counsel for Izhar Ahmad petitioner submits that the completion certificate is a proof of the fact that the entire amount stands paid and all procedure/formality for the allotment of the plots is fulfilled by the original allottee. Even otherwise if nothing is outstanding towards the original allottee, the subsequent transferee with bona fide consideration after permission from the Department cannot be held liable for any amount on the part of the original allottee. It is also submitted that in many of the cases the entire price was paid with the imposition of penalty and now there is no stage for further penalising the petitioners by imposing such penalty.

33. Muhammad Iqbal petitioner in Writ Petition No.6265 of 1995 submits that he was successful in the draw and was directed to deposit cross cheque or call deposit. He deposited cross cheque but the same was lost by the respondents. The petitioner again handed over a challan and deposited through call deposit Rs.10,000. Afterwards he was directed to deposit the entire price of the lot with interest which was complied with by him. The plot was cancelled without justification behind the back of the petitioner. It was put into auction and was allotted to Masood Ahmad a third party.

34. Learned counsel on behalf of M.D.A. submits that necessary pre condition of the allotment were not fulfilled by the petitioners and the misrepresentation of the petitioners were admitted by the respondents which were checked very late in the year 1991. Since the same were not within the knowledge of the department all call deposits were not deposited by the petitioners, therefore, no question of limitation will arise. Since the Department came to knowledge about the breach they issued notices to the petitioners. It is further submitted by the learned counsel for the M.D.A. that the respondents have no mind to cancel the allotments of plots and instead they want' to regularise the same by directing the petitioners to pay the additional price of Rs.4,500 per Marla as penalty. The market price of the plots has gone very high. He further submits that the impugned notice itself is an information to the petitioners. Therefore, they cannot say that they were condemned unheard.

35. Learned counsel for private respondent No.3 in Writ Petition No. 6265 of 1995 submits that primary conditions for inviting applications from the allottees were basically a draft of Rs.5,000, an affidavit and I.D. Card. In the application deposited by the petitioner complete facts of the cross cheque are not given. In fact he has not placed the cheque on record. Therefore, he was rightly served with notice on 22‑1‑1995, and the plot was rightly cancelled from his name. The private respondent participated in the open auction held on 27‑9‑1995 and deposited Rs.63,334 being a bona fide purchaser of the plot and it is protected under the relevant provisions of the Transfer of Property Act.

36. I have heard learned counsel for the parties and have carefully perused the record. The question to be determined by this Court is whether the action taken by the respondent/M.D.A. is in time because time is an essence of the agreement between the petitioner and the respondent/department. It is also to be determined by the Court that if the precondition of the entertainment of the applications by the petitioners was not fulfilled at what time the Department was under a duty to note the same and debar the petitioners to further participate in the proceedings of the allotment. The most unfortunate aspects of all these cases are that although the call deposit was not submitted by the petitioners but they were allowed to participate in the draw and were declared successful and allowed to pay the entire price of the land in certain cases with imposition of penalty and in certain cases with interest and at no‑stage the Department is vigilant enough to find out the breach. It is only after ten years the Department has woken up and has served the allottees with the impugned notices for non‑deposit of call deposit with imposition of penalty. It is also to be seen that at no stage the Department took an active step to bring forward the breach committed by the allottees and stopped the process of allotments to the allottees. Further action taken by the Department, as I have seen in majority of cases plots were transferred with permission of the Department and even site plans for construction on those plots were sanctioned by the Department. In this way in many cases re‑sale of the plots was completed after the getting permission from the respondents/M.D.A., sale agreements were executed, completion certificates were also granted and after the respondents raised their hands for further interference in the allotments of the questioned plots, the agreements entered into between the allottee and the department, time is always a great essence, each party has a right to get the contract or agreement performed within certain time and after the expiry of the fixed period or the reasonable time may treat the agreement or contract to have come to an end.

37. In the instant cases the failure of call deposit could disentitle the petitioners to participate in the draw but vice versa they were allowed to participate in the draw and after being successful they were allotted plots in the said Housing Scheme and were also allowed to rectify the breach through payment of entire price; were handed over possession; allowed the site plan for construction; and completion certificates were granted to them. Even sale agreement between the allottees and third persons were executed through the Department and after the expiry of ten years the impugned notices are given to the allottees imposing penalty. This conduct of the Department shows that they have waived their right of forfeiture and are disentitled in law to take further action by imposing a penalty and cancellation of plots when they have expressly allowed the other side to rectify the breach at an earlier stage.

38. Therefore, I allow these writ petitions and hereby set aside the impugned notices, decision of the Governing Body dated 7‑9‑1993, cancellation of the plots, their re‑auction and all other proceedings thereto to be arbitrary, harsh and without lawful authority and jurisdiction.

39. There shall be no order as to costs.

A.A./M‑386/L Petitions accepted.