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Writ Petition No. 339 of 1986, decided on 20th May, 1987.

Contract Act (IX of 1872)‑‑

‑‑‑S. 2(h)‑‑Constitution of Pakistan (1973), Art. 199‑‑Allotment of plots in housing project‑‑Terms and conditions set forth in a document signed by parties‑‑Document containing terms and conditions whether a "contract"‑‑Constitutional jurisdiction of High Court whether exerciseable for breach of terms of contract‑‑Document offering plots for construction of houses containing therein memorandum of acceptance, setting forth terms and conditions for allotment of plots‑ Such a document, held, would have all the characteristics and necessary ingredients of a contract between parties‑‑Allotment order relating to plots was nothing but a contract which came into being as a result of offer by Government to sell and acceptance by allottees‑‑Where scheme for allotment of plots had not been framed or issued in pursuance to any statute or statutory Rules, same could not be enforced as statutory rules or instruments in constitutional jurisdiction of High Court‑‑Rights and obligations arising from and connected with contract between parties could not be enforced in constitutional jurisdiction as remedy therefor was in a civil Court under ordinary law‑‑Term "aggrieved person" would have no relevancy in the context of a case where breach of contract was to be adjudicated‑‑Petition being devoid of merit was dismissed in circumstances.

1968 S C M R 1136; 1969 S C M R 122; 1983 S C M R 168; 1982 S C M R 912; P L D 1960 Dacca 1026; P L D 1967 Dacca 398; 1970 S C M R 58; 1980 S C M R 280 and P L D 1980 Lah. 15 ref.

Mian Mushtaq Ahmad for Petitioners. Tassadaq Hussain Jillani, A . A .‑G . for Respondents. Dates of hearing: 25th, 26th April, 1987 and 9th May, 1987.

This judgment shall also dispose of Writ Petition No. 546 of 1986 and Writ Petition No.290 of 1987. The petitioner has challenged the order of respondent No.2 requiring the petitioner to pay the price of the plot allotted to him in the scheme known as New Multan, Housing Scheme, at Masoom Shah Road, Multan at the enhanced rate of Rs.1,900 per Marla instead of the previous fixed price of Rs.1,021.20 per Marla.

2. The facts of the case giving rise to this writ petition are summarized as under:‑

In or about the yea: 1972‑73, Government of Punjab, decided to formulate residential Housing Scheme on no loss no profits basis for the benefit of low income groups in various towns of the Province. In pursuance to this decision of the Government, the Housing and Physical Planning Department, Government of Punjab, formulated a residential scheme known as New Multan Housing Scheme, at Masoom Shah Road, Multan and allocated a sum of Rs.1,11,54,000 for its development. The petitioners were allotted Plot No. 6, Block‑T, Plot No.7, Block‑T and Plot No.7 of Block 'Y' respectively in the said scheme. The petitioners were offered the allotment of these plots at the price of Rs.1,021.20 per Marla. These plots were residential and proper terms and conditions offered to the petitioners for transfer of plots by way of sale were signed by them in token of acknowledgment of their acceptance. However, subsequently due to increase in the costs of development, the Government of Punjab, decided to enhance the price of the plots and keeping in view the additional expenditures to be incurred, the price fixed was Rs.1,900 per Marla, therefore, the petitioners were required to pay accordingly. This demand of enhanced price has been challenged in this writ petition.

3. Learned counsel for the petitioners in support of the writ petition contended, that once the price was fixed at Rs.1,021.21 per Marla .having been accepted by both the parties, therefore, the respondents could not unilaterally enhance the price and the petitioners could not be required to pay the same. Learned counsel for the petitioners stressed with considerable force that there was no powers with the respondents to enhance the price and the decision to that effect is without lawful authority. He has argued that in case of allottees at Rahim Yar Khan, under the same scheme, the enhancement was made and the action of respondents was challenged through suit and the decision went against the respondents upto the level of High Court and it was held that the respondents could not enhance the prices.

4. On the other hand, learned A.A. ‑G. raised preliminary objection to the maintainability of the writ petition on the ground that the transaction in question which has been named as allotment order is in fact an agreement /contract between the parties which contains clause 4 (a) providing x x x x x x that the costs was provisional and it was subject to revision by the Government for any reason and therefore, this being a term and condition of the agreement between the parties and the petitioners having accepted it, is bound by it and cannot raise any objection and even if there is any grievance, the same could only be agitated through a civil suit under the ordinary law and jurisdiction of this Court under Article 199 of the Constitution to enforce rights and obligations under contract could not be invoked. Learned A.A.‑G. in amplification of this argument submitted that the petitioners could not be regarded as aggrieved persons within the meaning of this term as used in Article 199 of the Constitution. According to the learned A.A.‑G. Article 199 of the Constitution could only be pressed into service if there was violation of any law or statutory rules, and rights and obligations arisen from them were to be enforced as distinguished from rights and obligations arising from the contract between the parties, and as such no direction can be given to the Government to act in accordance with the terms and conditions of the agreement or contract between the parties which function is of the civil Court to perform through a proper civil suit which a person aggrieved could bring. Learned A.A.‑G. in support of his arguments relied upon the case‑law such as 1968 S C M R 1136, 1969 S C M R 122. Learned A.A.‑G. has also raised another objection that the writ petitions suffer from laches. He has brought to my notice that the agreement between the parties was executed in July, 1976 containing the said clause 4 (a) entitling the Government to enhance price which was duly signed by the petitioners who kept quite for fairly very long time and did not raise objection of its validity and has filed the writ petitions now in the year 1986 after the lapse of 10 years, therefore, the conduct of the petitioners is such that they are disentitled to the grant of relief under Article 199 of the Constitution which is discretionary and they are also estopped from challenging its validity. In this respect reliance has been placed on 1983 S C M R 168, 1982 S C M R 912, P L D 1960 Dacca 1026, P L D 1967 Dacca 398. Learned A.A.‑G. has also argued that the conduct of some of the petitioners who according to him previous to the filing of this writ petition filed civil suits but later on withdrew them and filed the present writ petitions, disentitled them to the grant of discretionary relief under Article 199, as held in 1970 S C M R 58, 1980 S C M R 280.

5. In rebutting the arguments of the learned A.A. ‑G., the learned counsel for the petitioners contended that the said clause (4) (a) in the allotment form was not printed in the original form as is clear that the said clause has been added through a rubber stamp at the bottom of the first page after clause 4 and according to him it is unilateral act of respondents and has been added by some persons who were not authorised to put such a clause, therefore it did not have the binding force. He has also argued that apart from this, this clause is highly unreasonable oppressive, harsh and arms the Government with unlimited and arbitrary powers to enhance the price at any amount, therefore, it could be treated as void and non‑existent. As to the argument that the petitioners accepted the said clause when they signed the agreement knowing well that the said clause had already been added, learned counsel for the petitioners pleaded that the said acceptance to the extent of said clause was not with free will and agreement was signed under compulsion with the fear that if the petitioners did not sign the agreement they might not have been allotted the plots in dispute. The learned counsel for the petitioners has argued that the petitioners are certainly aggrieved persons within the meaning of terms as used in Article 199 of the Constitution and in this regard relied upon more than a dozen judgments of High Court and Supreme Court cited at the Bar which need not be discussed here as they are not relevant to the point in issue inasmuch as in all those judgments the grievance of the concerned petitioners was that the public functionaries flouted either the provisions of statute or statutory rules the violation of which gave rise to a cause of grievance to the petitioners and the rights and obligations sought to be enforced in those cases were flowing from statute and statutory rules. It may be stated here that but for my finding that in the present case the petitioners seek to enforce rights and obligations arising from contract, the petitioner would A have been aggrieved person, within the meaning of Article 199 of the Constitution to invoke the writ jurisdiction had it been a case of enforcement of rights and obligations under the statute or statutory rules.

6. The case of the petitioners was that the allotment order was not a contract but was issued in pursuance to schemes formulated by the Government in accordance with the instructions issued from time to time, by Government, therefore, those instructions as well as the schemes have the force of statutory rules as such in this manner, the petitioners shall be deemed to be seeking relief regarding violation of statutory rules and the rights flowing therefrom, therefore according to learned counsel, the writ petitions were maintainable and competent. He has further argued that no such clause was added in the allotment orders issued at Rahimyar Khan therefore, the petitioners have been highly discriminated in this regard. He has termed the decision of the authorities as highly arbitrary and capricious. Apart from this, learned counsel argued with vehemence that the decision to enhance the costs of development and consequential increase in prices of the plots has not been made by the Government itself but it is being done by officials at lower level such as respondent No.2 and his subordinates therefore, even if clause 4 (a) is treated to be valid and operative even then according to the said clause it is the Government who could enhance the price, which in this case has not done so. In support of his contention he has relied on P L D 1980 Lahore 15 to show that Government could only act through Secretary and not through respondent No.2. In this context reference was also made to Articles 173 and 138 of the Constitution, dealing with procedure of making contract by Government. Learned counsel for the petitioners submitted that according to the allotment order itself, the price of plot was fixed in its schedule the opening part of which provides that the price of the plots and mode of payment shall be as specified in the schedule, which in term provides that the exact price shall be determined on the basis of the actual area of the plot as measured at the time of delivery of the possession. According to learned counsel, the change in price could only take place on the basis of or increase of area on measurement and not otherwise and the said clause 4(a) being not part of schedule therefore, the Government was not entitled to enforce that clause over and above the schedule unless schedule itself was duly amended. On merits of enhancement it is contended that no further facilities were intended to be provided to allottees, the enhancement of price was not legally and morally justified.

6‑A. I have given my anxious consideration to the arguments advanced from both the sides. The decision regarding the non‑maintainability of this writ petition as canvassed by the learned A.A.‑G. centres around the determination of question of true import, nature and construction of the document i.e. allotment order itself which requires very careful detailed scrutiny in order to appreciate the arguments of both the sides. I have gone through this document thoroughly. It is in the nature of a letter which has been addressed to the petitioners offering them the terms and conditions in detail regarding the property which the petitioners were to be transferred, its price, mode of payment, etc. and its clause 3 reads as under:‑

In case you accept the allotment with the above conditions of allotment you are requested to attend the office of the undersigned on any working day and sign on a duplicate copy of this allotment order ‑‑‑‑‑‑ in the presence of two witnesses within‑‑‑‑".

At the end, it has been signed on behalf of the Government by Deputy Director and below the head "memorandum of acceptance," the petitioners have signed and it is witnessed by two witnesses.

7. Keeping in view, this document, it can very safely be held that it has got all the characteristic and necessary ingredients of a contract between the parties wherein certain terms have been settled and accepted for the transfer of plot on price which have been termed as allotment order. By no stretch of imagination or law it can be argued by the petitioners that it was not so. When asked as to under what law the Housing Scheme have been framed and the departmental instructions issued, the learned counsel for the petitioners could not name any one. Since those so‑called schemes have not been framed or issued in pursuance to any statute or statutory rules therefore, it cannot be pleaded by the petitioners that the petitioners were seeking to enforce the statutory rules or instruments through E this writ petition. The schemes or instructions whatever issued they have been formulated and issued under the general administrative powers of Government for the guidance of the various functionaries connected with the carrying out of these schemes providing them guidelines as to how various steps are to be taken including allotment and transfer of plots which necessarily is the internal matter of the Provincial Government and their various departments inter se and they did not have the force of statute or statutory rules and cannot be equated with them. The allotment order is nothing but a contract which came into being as a result of offer by Government to sell and acceptance by petitioner therefor, the argument of learned A.A.‑G. in this regard has merits in it. It is well settled that under Article 199 of the Constitution rights and obligations arising from and connected with the contract between the parties cannot be enforced and remedy for that is a civil suit under the ordinary law. The case‑law cited by the learned A . A . ‑G . fully supports this view which has become a well settled generally accepted rule of law and no exception can be taken in this case on any ground. The judgments cited by the learned counsel for the petitioners on the question of term 'aggrieved person' have no relevancy in the context of this case inasmuch all those judgments, the persons concerned were held to be aggrieved because they were enforcing through writ petition certain rights and obligations flowing from statute or statutory rules the violation of which resulted in infringement of their statutory rights contrary to which the Government could not act. As to the arguments that the decision of enhancement was not made by the Government itself, learned A.A.‑G. has drawn my attention to the documents attached as Annexure 'H' with the written‑statement which is dated 1‑7‑1979. It is a letter from Government of Punjab to respondent No.2 on the subject in question in which he was conveyed that M.L.A. had seen the revised rates indicated by him and that it l was hoped that he had been making recoveries at these rates. In response to the learned A . A .‑G .'s letter for clarification of this aspect the respondent No.2 intimated him the said position. After going through both these documents, there is no iota of doubt that it was the decision of the Government of Punjab itself, that the rates be enhanced and it was not done by any authority or officer at the lower level, of his own as is being pleaded. The argument of the learned counsel for the petitioners that in similar circumstances the Government failed in the suit, filed by the allottees at Rahimyar Khan, in which it was held that it could not enhance the rates therefor, the petitioners should also be allowed the same relief in these writ petitions. Learned A.A.‑G. in reply to this argument has brought to my notice that in the case of plots at Rah‑imyar Khan the decision against respondents was given only for the reason that there was no clause 4 (a) added in the agreement with those allottees. Moreover, those decisions were rendered in regular civil suits whereas the petitioners have filed misconceived writ petitions which are not maintainable. Learned counsel for the petitioners lastly relied on i judgment in Regular Civil Appeal No. 1003/78 decided on 2‑2‑1987 b, this Court in which according to him in similar circumstances enhancement of price was stuck down. It was a matter under the, Colonization of Government Lands Act, 1912. The said case has no] relevancy inasmuch as that was a case of scheme under statute and moreover it was specifically held therein that the allottee in that case, agreed that he would abide by the change in the price already fixed if made subsequent to 3‑10‑1963 whereas contrary to that authorities were charging enhanced rate from him on the basis of decision dated l 9‑1‑1963 and 12‑1‑1963 which were earlier to 3‑10‑1963 therefore, it l was accordingly held that the allottees in that case could legitimately object to the enhancement which was in violation of the said clause. 1 In that case also the remedy was sought through civil suit which was the only mode to enforce contractual obligation.

After having held that the instrument of allotment is a contract between the parties and the decision regarding enhancement of price having been taken by Government in purported exercise of right derivable from clause 4 (a) of the contract therefore the grievance agitated, which also requires detailed enquiry and recording of evidence therefor, jurisdiction under Article 199 of the Constitution could not be invoked. I have however, refrained from expressing any opinion on the respective contentions raised for and against on merits of the case so that the case of any of the parties may not be prejudiced if the matter is brought before civil Court by the petitioners.

For the foregoing reasons, this writ petition fails and it is hereby dismissed with no orders as to costs.

A . A . / A‑113/L Petition dismissed.

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