MS Resource Industry Vs Sarhad Development Authority

JUDGMENT SHEET

I'ESHAWAR HIGH COURT . AlillO'I'TABAD IlI,lN CII

JUDICIAL DEI'AITTMENT

Writ Pctition No.15l-A of 2012

JUDGMENT

l)ute of hearing 26.09 2018

Pelilioner(s) .(M/S llesource lnduslrie,s (l'vt)l.lLl,,'l-39 5.1.7'.)i Mangopir llood. Karachi, Sire O[/ica. l'lol No.13, (l'hase I & ll1, lnclustriul l,.stuttt Ilallar, l)islricl Iluripur lhrough its (iencrrrl Manager,,4tt iq-ur- Rehmanl b.y ll,lo I i k Unu t i Suleem. tldvtcale... ... ..

lle.ytontlenl (.s) (Sarhod l)cvelopntcnl lulhrn'ilt,. P 1,1 lluilding, Peshawar Oanlt, through its Chtrirman ontl ctlhet.s.) h1," l,'l/S lttlalik Mehmoocl ,4khtor, Khulid lfuhmun Qure:hi. ,,1dwttule.s, Ra ju Muhununutl Ztbair. ,4,1(i trul .l,tt,'Ll Ourr'.tlti. .hlnt, rr;, SYED MUHAMMAD ATTIQUE SHAH J.- 'fhc petitioner [hrough instant writ petition under Articlc 799 of the Constitution of Islamic l{cpublic of Pakistan, 1973, has approached rhi.s Court wiih the following prayer:-

"ft is therefore most respectlully submitted that on acceptance of this writ Petition:

tt. The cancellotiott/retrieva I order dated 23.A8.2"011 and letter .lst'id 27.02.2072 issued bv the

Respondent No.2 mqy graciously be declared illegal, malaftde, void ab- initio and of no legal effect

AND

b. The respondents be directed to withdraw the cancellation order dated 23.08.2071 with immediate effectAND c. The respondents may kindly be directed not to inlerfere in the possession of the petitioner or his normal industrial activities in any mqnner, whatsoever AND d. The subsequent Lease Deed No.1557 dated 15.71.2071 may also be declared illegal, malafide, collusive, void ab-initio and have no bearing effects on the rights of the petitioner.

e. Any other relief which this August Court deems proper may also be given in the circumstances of the case,"

2 Brief facts, as averred by the petitioner, in the instant writ petition art:, that the petitioner was leased out Plot No.43 measuring 4 Acres, in Phase I & II, Industrial Estate, Hattar, District Haripur for establishing a 'Mining Industry' vide registered leasc deed No.242 /1, dated 27.01.1991 alongwith agrecrnent; that the petitioner has paid Lirc luil lease amount of Rs.1,400,000/- and has also t

been paying different dues and taxes in time and nothing was outstanding against him; that thc petiLioncr has established Mining Industry and for the said purpose building i.e. offices, shed, rcsidcntial accommodations ctc was constructed and requisite machinery was installed and electricity, gas and water connections were obtained, s^l<illcd and unskillcd labour were also employcd and thc inclr-rstry bccamc functional sincc 1991 1992;

that respondent No.2 through his letter dated 30.06.2011 informed the petitioner that 2 Acres of the leased plot IS lying vacant and as per building bylaws of the Estate, thc covcrcd arca shall not be less than 55% and not morc than 600/o of the total area of allotted plot; that the petitioner submitted his detailed reply to rcspondcnt No.1 and entirc position on thc spot was explained to him but no responsc has bccn reccivcd so far; that in the mcantime Respondent No.2 unlawlully cancelled/ retrievcd lcase of 2 Acres and dircctcd him to surrender the possession of the said area; [hat t

thc pctitioner preferred an appcal to respondent No.1 on 20.09.2071, however, no decision has been made thereon by him; that the petitioner, all of a sudden, received another letter dated 21.02.2012 from respondcnt No.2, whereby lease money of retrievcd land of 2 Acres was refunded through a Cross chequc dated 09.02.2012 but the cheque tn question was not enclosed with the said letter, which refund of lease money amounts to rcjcction ol appeal of the petitioner; that after cancellation of the pctitioner's lcase, the arca of 2 Acrcs has been allotted to Respondent No.4. vide Lease Deed No.1557 dated 15.11.2011,. Ilcncc, this amended writ petition

3 Learned counsel for thc pctitioner vehemently argued that the impugned orders arc illcgal, arbitrary, perversc and hasccl on malicc and malafide; hc further argucd Lhat neither opportunity of hearing was provided to the petitioner before passing of the impugned order of retrieval by the respondents; nor any prior opportunity was afforded to him aL thc t

timc ol cancellation of the lease to the extent of 2 Acrcs, hc prayed for acceptancc of the writ petition by setting aside the impugned orders and subsequent allotment in favour of respondent No.4

4 Conversely, learned counsel appearing on behalf of the respondents d elendecl the impugned orders while arguing that in vicw of clause 16 of the Rcgistcrcd Lease Deed dated 28.01,.1-991 there was no need for is-suing prior notice to the petitioner or providing him any opportunity of hcaring before passing of retrieval order as well as order for cancellation of lease, and prayed for dismissal of present writ petition 5 Arguments of the lcarned counsel for the parties heard and record perused with their valuable assistance.

6 Admittedly, Plot No.43 Industrial Estate Hattar, District Haripur, measuring 4 Acrcs was allo[ted to the petitioner by the respondents vide Allotment Letter No.l'H/1263/4'35 dated 17.01.1991 and thc said allotmcnt- w:rs

subscquently converted into lcasc agrccm(rnL vidc registcred Deed No.242/7 datetl 28.01..1991 'l-hc petitioner has established its industry with the name of M/S Resource Mining Industrial Corporation (Pvtl Ltd since 1991-1992. Thc respondent No.2, after morc than twcnty ycars o[' the allotment and Lease Deed, issued a letter bearing No.SDA/PM/HE/959-63 dared 30.06.2011, wherein, they retrievcd Iand mcasuring 2 Acrcs from Lhc pctitioncr on [hc ground that uncovered area of plot found in excess of 45% shall bc liable to cancellation. 'l'hc petitioner, however, submitted clarification rcgarding uncovercd area in hi.s letter dated 5.07.201'1. The respondents in response to clarification sought by the petitioner we re required to have properly addressed the matter but they instead issued cancellation order vidc letter No.SDA/PM/HIE/134U-51 datcd 23.08.2011, wherein, they mentioned thaL thc justification furnished by thc pctitioner for holding 2 Acres land, being unjustified was not entertained and has accordingly bccn rlrsposcd

oif vide letter No.SDA/PM/tltF./1205 datcd 03.08.2011. The petitioner also filcd appeal against the order dated 23.08.2011 but no decision whatsoever has SO far been passed by the respondents thereupon. Moreovcr, the said retrieved land was subsequently allottcd to respondent No.4 vide lease deed dated 15.71.20|'.t.

7 In view of the peculiar facts and circumstances of the case in hand, this Court would not discuss in deep the merits of the case, lcst it may prejudice the case of any of thc partics.

Howevcr, on cursory perusal of the record reveals that the respondents without giving any no[ice to the petitioner and providing him opportunity oF hearing passed order of retrieval regarding 2 Acres Land in his possession, which is against the principle of natural justice. 'fhc pctitioncr also sought clarification from thc rcspondcnts vidc letter dated 05.07.20'11 after the said retrieval order, however, the respondents instcad of furnishing clarification to him, disposcd of thc said clarification letter by terming it uniustified,

ti

and issued cancellation letter clatecl 23.08.2011 unilaterally without affording any opportunity ol hearing. The act olthe respondents has certainly prejudiced the cause of petitioner, as he remained condemned unheard. Be that as it may by now it is an cstablished principle of law thaL nobody car-r bc condcmned unheard and no act or acLiorr which is detrimental against the right and interest of a person/persons can be passed without giving him prior notice and opportunity of hearing. 'l'he rccord of the case further transpires that thc respondents have not treated the pctitioner fairly and justly. Moreover, the argument of learned counscl for the respondents does not hold ground thal no prior notice is required for rctricval of property or cancellation of lease in terms of clause 16 ol the Lease Deed dated 27.01.1-991, because principle of Natural Justice is the hall mark of Lruc dispcnsation of justice, therc[bre, the respondcn[s cannot take refuge under the clause ibid. As by now it is well settled that even if statutory law or rule docs not provide a right and opportr"rnity of hearing before taking any action or passing any t\

order detrimental to the rights of a person(sJ still it would be deemed that such right is available to the person/pcrsons aggrievecl, which cannot bc taken away from him/them on the ground that the authority under the law is not obliged to give him/them prior notice. Even thc principlc ol- natural justice "audi alterm partem" is to be rcad into every statute regardless of that whether or not thc same is contemplatcd ln a s tatue/instrument governing procccdings and rights of the parties in this respect. Wisdom IS derived from the judgment ofApex Court rcported ln scMR 1034 whercin it is hcld that "We have considered the arguments so advanced by both the sides in this behalf it mqy be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is invogue the principle enshrined in the maxim audi alterm partem has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part

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of the instrument governing the proceedings. Though the principle of audi alterm partem is not universally accepted principle but emphasis on its application hos always been made on those proceedings where adverse action is being contemPlated to be taken against the Person/Persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken."

In this regard, reference may be made to PLD 2 011 SC 671aru) 201BMLDl 425 ln thc light of the above discussion, this Court reached at thc conclusion that the retrieval order datcd 30.06.2071 and cancellation order datcd 23.08.2071 are illegal, unlawful, perversc anrl 'l-he arbitrary, therefore, the same arc set aside' subsequcnt allotment of 2 Acres land out ol Plot No.43 vide registered lease decd dated 15.11.2011 in favour of respondcnt No 4 is also declarecl illegal and thc samc is also revoktld bcing bascd on an illegal and void ordcrs

lt

I lowever, respondents are at libcrty to proceccl against the petitioner if they wish so, in case the petitioner has committed any illegality or violatcd the provisions of Bye-laws, but strictly in accordance with law, while providing him full opportunity of hearing in accordancc with thc principle of natural justice.

Dt.26.09.2018. JUD E

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