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Petitioner: MUHAMMAD AKBAR KHAN VS Respondent: PAKISTAN DEFENCE HOUSING AUTHORITY
1994 C L C 226
1994 C L C 226
[Karachi]
Before Sajjad Ali Shah, CJ. and Wajihuddin Ahmed, J
MUHAMMAD AKBAR KHAN‑‑‑Petitioner
versus
PAKISTAN DEFENCE HOUSING AUTHORITY and another‑‑‑Respondents
Constitutional Petition No. D‑986 of 1989, decided on 17th April, 1990.
Pakistan Defence Officers Housing Authority Order (7 of 1980)‑‑‑
‑‑‑‑Para. 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Cancellation of plot‑‑‑Validity challenged in Constitutional petition ‑‑‑Maintanability of petition‑‑‑Disputed questions of fact were involved in Constitutional petition, each side projecting its own version of matter‑‑‑Petitioner in the very first paragraph of memo. of petition had claimed to be an ex‑Officer of the Cantonment Board whereas respondent Authority claimed that he was a mere Clerk, unqualified for the allotment‑‑‑In view of seriously disputed facts as also minute factual details, which might have to be gone into in resolving such dispute, petitioner's remedy would lie in the instituting a proper suit governed by Spec Relief Act, 1877 and the law of Contract etc., if so advised‑‑‑Constitutional petition was not competent to resolve disputed questions of fact.
Akhlaq Ahmed Siddiqui for Petitioner. Nazar Hussain Dhoon for Respondents Nos. 1 and 2.
ORDER
WAJIHUDDIN AHMED, J‑‑‑The petitioner in this case has challenged the cancellation of allotment of Plot No. J‑51, Jami Staff Lane No.l, by the Pakistan Defence Officers' Housing Authority, having been allotted to the petitioner on 13‑1‑1976. It is pleaded that the petitioner had paid all dues in respect of the said plot and stood even otherwise fully entitled to retain the same when he was served with letter dated 22‑9‑1987 from the respondent Pakistan Defence Officers' Housing Authority canceling such plot. The petitioner has challenged this cancellation on the ground that it is without jurisdiction, on contravention of law and in negation of the principles of natural justice.
The respondent Authority, which was required to submit comments, in reply maintains that the plot under reference stood allotted to another person in 1972 in whose favour a proper lease had been executed. Further the allotment in favour of the petitioner was bad as only officers were entitled to whereas the petitioner was only a clerk in the Karachi Cantonment Board. The allotment also lacked proper approval of the Managing Committee. The petitioner's allotment, thus, being fraudulent and a duplicate one, was rightly canceled.
We have heard Mr. Akhlaq Ahmed Siddiqui and Mr. Nazar Hussain Dhoon. Mr. Nazar Hussain Dhoon maintains that the respondent authority has full powers under the Pakistan Defence Officers' Housing Authority Order 7 of 1980, its parent statute, to pass such orders in respect of transfer of plots involving duplicate allotments as the respondent Authority may deem fit.
On a closer examination of the case we are of the view that disputed questions of fact are involved in this petition, each side projecting its own version of the matter. Thus, apart from the above, the petitioner in the very first paragraph of the memo. of petition has stated that he is an Ex‑Officer of A the Karachi Cantonment Board whereas the respondent authority claims that he was a mere clerk, unqualified for the allotment. Likewise the petitioner maintains that on the date of cancellation of the allotment he stood fully secured in his title. If that were so, it is not clear as to why the petitioner had to submit an application dated 26‑6‑1987 and follow it up by letter dated 1‑3‑1987, which prompted the respondents' reply dated 22‑9‑1987 intimating the cancellation as well as refusal to accede to the petitioner's application for allotment of another plot.
The respondents themselves have commented that the proper remedy of the petitioner, if at all, would be by way of a regular suit and not in the Constitutional jurisdiction of this Court. In view of the seriously disputed facts as also minute factual details, which may have to be gone into in this dispute, petitioner's remedy would clearly lie in instituting a proper suit governed by the Specific Relief Act and the law of contracts etc., if so advised.
In the result this petition is dismissed in limine. In view of dismissal of main Petition Misc. 2802/89 is also dismissed.
AA./M‑1862/K??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.