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Criminal Petition for Special Leave to Appeal No. 518 of 1977, decided on 17th August 1978. .

(On appeal from the judgment and order of the Lahore High Court dated 9‑6‑1977 in Writ Petition No. 3140 of 1975).

‑‑ S. 3 [as amended by Law Reforms (Amendment) Act (VIII of 1972), S. 2‑ Constitution of Pakistan (1973), Art. 185(3)‑Appeal being com petent before Division Bench of High Court but petitioner not availing of such remedy‑Petition for special leave to appeal before Supreme Court, in circumstances, held, could not lie.‑[Leave to Appeal].

‑‑‑ Sched.‑Allotment of evacuee property‑Plots allotted to respon dents under orders of Chief Minister and formal allotment letters also issued conferring valuable property rights on them‑Such rights, held, rightly found by High Court to be not taken away without affording allottees opportunity of being heard and without assigning any reason for withdrawal of allotment‑Administrative authorities, held further, should not act arbitrarily and capriciously.‑[Natural justice, principles of].

Mahfuzul Haq Khan, Advocate Supreme Court assisted by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

M. Arif, Senior Advocate Supreme Court assisted by Ejaz Ahmad Khan, Advocate‑on‑Record for Respondents.

Date of hearing : 17th August 1978.

This petition seeks leave to appeal against an order made by a learned Single Judge of the Lahore High Court on the 9^th of June, 1977, by which a Constitution Petition moved by respondent Mst. Surrya Begum alongwith another lady Mst.Amir Jan was accepted and it was held that the order made by the Provincial Government canceling the allotment of residential plots from their names was without lawful authority and of no legal effect.

The relevant facts are that on the recommendation of the President of Azad Kashmir, the Chief Minister of the Punjab, by an order made on the 9th of July, 1975, allotted two residential plots in the Rivaz Gardan Scheme on Multan Road, Lahore, to the two ladies aforementioned. The plot allotted to the respondent Mst. Surrya under the formal allotment letter of the 30th of October, 1975, was described as Plot No. 358, whereas the plot allotted to Mst. Amir Jan bore No. 359. On the 27th of November, 1975, a letter was addressed by the Section Officer,. Housing and Planning Department, Government of the Punjab to the two ladies, informing them that the allotments already made to them had been withdrawn. The petitioner contends that Plot No. 358 was then allotted to him on 2‑12‑1975. The two ladies challenged the order of cancellation of their allotment in the High Court, contending that the allotment had conferred valuable property rights upon them, which could not be withdrawn without notice and without giving them an opportunity of being heard. It was also submitted that the allottees had complied with the requirements of the scheme by depositing the first instalment within the prescribed time on 24‑11‑1975, i. e. before the date of the order of withdrawal. The learned Judge accepted these contentions, overruling an objection raised by the present petitioner that the Plot No. 358 had since been allotted to him, and he being a bona fide allottee could not be made to suffer, specially when he had obtained possession of the plot from the Government.

It may be stated that the petitioner had submitted an application in the High Court for being impleaded as a party to the Writ Petition, but his application was rejected by the learned Judge by an order made on the 10th of May, 1976, on the ground that for the purpose of adjudicating the dispute raised in the writ petition, the petitioner was not a proper or necessary party, as he had come into the picture only subsequent to the withdrawal order which was being impugned by the two allottees. However, the petitioner was given permission to appear in the case and to argue on the legal points arising therein.

The petitioner, appearing in person before us, contends, that the allot ments made to the two ladies were in the nature of ex gratia administrative action, and, therefore, no legal right accrued in their exercise of Writ Jurisdiction. He next contends that, in any case, he had been put into possession of the property by the Provincial Government, for the reason that he was a deserving Government servant, fully entitled to allotment under the Scheme, and he could not be deprived of the plot in favour of non‑deserving allottees who had not. produced 'any evidence to show that they were entitled to. allotment on the ground that they did not possess any residential property in the province.

On behalf of the respondent Mr. Muhammad Arif has raised a preliminary objection that according to section 3 of the Law Reforms Act, 1972, this petition is not competent, as an appeal in this case lay, in the first instance, to a Division Bench of the High Court itself, but that opportunity has not been availed of by the petitioner, without any valid reason. On merits, the learned counsel contends that the allotment having been made by the competent authority; it could not ‑be taken away without issuing a show‑cause notice and without assigning any reason whatsoever. Finally, Mr. Arif contends that if, indeed, the allotments were made to the two ladies purely on the administrative side, and no legal right accrued in their favour, the same position would apply to the petitioner who had no legal right to retain the allotment of Plot No. 358, as that would also be without any legal sanction.

We find that the objection raised by Mr. Arif as to the maintainability .of the present petition is well‑founded. According to section 3 of the Law Reforms Act of 1972, an appeal was competent in this case before a Division Bench of the High Court, but the petitioner has not availed of that remedy. In the circumstances this petition does not lie.

In any case, it is clear that the order made by the learned Judge in the High Court is eminently just and proper. The plots had been allotted to the two ladies under the orders of the Chief Minister of the Punjab and formal allotment letters had also issued to them, thus conferring valuable property rights on them. The High Court is right in saying that these, rights could not be taken away without affording the allottees no opportunity of being heard, and without assigning any reason for the withdrawal of the allotments. The cancellation order does not fulfil these requirements. We need not examine the question whether the allotments were made under any law or not, as admittedly they were under a Scheme properly framed by the Government. It is necessary that even administrative authorities should not act arbitrarily and capriciously. Once the plots had been allotted to the two ladies they could be cancelled only in accordance with a prescribed procedure, or at least only after a show‑cause notice assigning any valid reason for the withdrawal of the allotments. As this was not done, the High Court was right in declaring that the order of withdrawal was without lawful authority and of no legal effect.

In this view of the matter the subsequent allotment made in favour of the petitioner could not stand. However, we find that the petitioner is also a deserving case, as he is a low‑paid Government servant, and said to be suffering from tuberculosis. In the circumstances we would like to express the hope that the authorities concerned would take a sympathetic view and try to accommodate the petitioner by allotting him another plot in the same Scheme.

With these observations the petition is hereby dismissed.

Petition dismissed.

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