Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 3853 of 2011

Date	Order with signature of Judge

Before :

Mr. Justice Nadeem Akhtar

Mr. Justice Abdul Rasool Memon

Petitioners 1 & 2 : Muhammad Usman and Jawad Rizwan,

through petitioner No.1 in person.

Respondent No.1 : Shafaatullah Khan through Dr. Muhammad

Farogh Naseem, Advocate.

Respondent No.2 : The Province of Sindh, called absent.

Respondent No.3 : The Managing Director, Sindh Cooperative

Housing Authority, called absent.

Respondent No.4 : The Registrar, Cooperative Societies Sindh,

called absent.

Respondent No.5 : The Ex-Servicemen Cooperative Housing Society,

Karachi, through Mr. Jam Habibullah, Advocate.

Date of hearing : 30.08.2016.

…………

ORDER ON C.M.A. No. 29 of 2013

NADEEM AKHTAR, J. – Through this application, respondent No.1 has prayed that the order passed in the instant petition on 19.12.2012 be reviewed / recalled, and he may be allowed to contest this petition on merits. The relevant portion and operative part of the said order dated 19.12.2012 read as under :

“In their comments, respondents No.2, 3, 4 and 5 have admitted that the amenity plots i.e. community centre, plot for school and plot for mosque were illegally allotted to respondent No.1, but even cost of such lands was not paid by respondent No.1. Although the respondent No.1 has been duly served, however, none is present on his behalf.

We would, therefore, by consent of all present, dispose of this petition by directing the respondents to take all necessary measures for resuming the plots in question. The exercise be initiated instantly and be pursued vigorously so that the illegal and unauthorized allotment made in favour of respondent No.1 be withdrawn and, in case any lease has been registered in favour of respondent No.1, that be also cancelled. The above exercise be concluded as early as possible. Quarterly progress reports shall be submitted by respondent No.3 and 4 to the MIT-II of this Court on regular basis, without fail. It is further ordered that there shall absolutely be no allotment/sale of any amenity plot in violation of the relevant law, rules and regulations.

The petition stands disposed of in the foregoing terms.”

2. Dr. Muhammad Farogh Naseem, learned counsel for respondent No.1, contended that notice of this petition was never served upon respondent No.1 and as such he had no knowledge about its pendency or the date of hearing when the order in question was passed. He further contended that respondent No.1 came to know about the said order on 31.12.2012, when some unknown persons came at the site by claiming that his allotment has been cancelled by this Court. It was urged that valuable vested rights of respondent No.1 in the plots in question have been taken away without hearing him, and as such he has been condemned unheard. Without prejudice and in addition to his above submission, he contended that the petitioners have no locus standi to file this petition, and the petition is not maintainable either in law or on facts. He submitted that the correct factual position can be explained by respondent No.1 only when the order in question is recalled and the petition is restored to its original position. He further submitted that important questions of law are involved in the instant petition, which could not be decided without hearing respondent No.1. Learned counsel, therefore, prayed that the order in question be recalled so that the matter may be decided on merits.

3. Petitioner No.1, who is appearing in person, opposed this application by submitting that despite being fully aware about these proceedings, respondent No.1 did not appear or assist the Court. He insisted that the allotment in favour of respondent No.1 was illegal and the same was rightly cancelled by this Court. According to him, in case the order in question is recalled, the Society in particular and the public in general will be seriously prejudiced as illegal allotment of amenity plots will stand restored in favour of respondent No.1. On our query, he conceded that the order for cancellation of the respondent No.1’s allotment was passed in the absence of respondent No.1.

4. Record shows that notice issued by the office to respondent No.1 for 06.11.2012 had returned unserved. Immediately after the said date, there was an office note on the order sheet that intimation notice had been issued for 19.12.2012. However, intimation notice for 19.12.2012 was issued only to the petitioners and not to any of the respondents. There is nothing on record to show that respondent No.1 had been served prior to 19.12.2012 or he had knowledge that the matter was fixed on 19.12.2012. In our opinion, the office committed a mistake by not issuing / repeating notice for 19.12.2012 to the respondents, particularly respondent No.1, and due to such lapse on the part of the office, the order under review was passed on the said date. We are also of the view that the observation in the order passed on 19.12.2012 that respondent No.1 had been duly served, was not correct in view of the above. It is well-settled that no party should suffer because of mistake of the Court. In the instant case, respondent No.1 has suffered because of the above lapse on the part of the office and incorrect observation by the Court regarding service upon him. The question whether his allotment was liable to be cancelled or not, ought to have been decided after giving opportunity of hearing to him, or at least after proper service upon him. In the above circumstances, the order passed on 19.12.2012 cannot be allowed to remain in the field.

5. Foregoing are the reasons of the short order announced by us on 30.08.2016, whereby CMA No.29/2013 filed by respondent No.1 was allowed as prayed and the order passed on 19.12.2012 was recalled, and his CMA No.28/2013 was disposed of as having become infructuous.

J U D G E