Mrs. Sameen Sadeeq VS FGEHF and others

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A.No.206 of 2017 Mrs. Sameen Sadeeq Versus The Federal Government Employees Housing Foundation and others Date of Hearing: 12.10.2022 Appellant by: Mr. Niaz Ahmad Rathore, Advocate, Respondents by: Mr. Nazir Jawad, Advocate for

F.G.E.H.F.,

M/s Qamar Afzal and Ghulam Mehboob Khokhar, Advocates for respondent No.6.

MIANGUL HASSAN AURANGZEB, J:- Through the instant intra Court appeal, the appellant, Mrs. Sameen Sadeeq, impugns the judgment dated 05.05.2017 passed by the learned Judge-in-Chambers whereby writ petition No.3911/2012 filed by the appellant / petitioner was disposed of with the observation that no interference is warranted in the letter dated 01.08.2012 from the Federal Government Employees Housing Foundation (“F.G.E.H.F.”) whereby the allotment of Plot No.15, Street No.62, Sector G-13/2, Islamabad in her favour was cancelled. However, F.G.E.H.F. was directed to reimburse the amount deposited by the appellant.

2.The record shows that F.G.E.H.F. had issued a brochure pertaining to “Housing Scheme Phase-III for Federal Government Employees on Ownership Basis” (“Scheme”). Under the said Scheme, plots of different sizes were offered for allotment to various categories of applicants mentioned in paragraph 5 of the said brochure. The said brochure also set out the criteria for the allotment of plots which is reproduced herein below:-

“CRITERIA FOR ALLOTMENT

a) Mode of scrutiny of applications and the seniority for the purpose of allotment shall be determined in the order of the date of birth of the applicant. In case of widows of the Federal Government Employees, and those who became disabled during service, the seniority shall be determined on the basis of length of Federal Government service of the deceased/disabled employee.

b) First priority shall be given to those applicants who or whose spouse(s) or any other member of their families neither own plot/house in Islamabad on 1.4.1996, nor any plot/house was ever allotted to them by the CDA, Federal Government

Employees Housing Foundation, Defence Housing Authorities. Each applicant shall have to submit an affidavit to this effect duly countersigned by a First Class Magistrate. If at any stage, contents of the Affidavit are found to be fictitious or false or any material facts found to have been concealed/mis-stated or suppressed deliberately and knowingly, the allotment will be cancelled. In addition, the amount deposited will be forfeited and such legal action as deemed appropriate will also be taken. c) Second priority shall be given to those applicants who or whose spouse(s) and any other member of their families own plot/house in Islamabad on 1.4.1996 but were never allotted a plot in Islamabad by the CDA, Federal Government Employees Housing Foundation/Defence Housing Authorities or any other authority.”

3.The appellant had also applied for the allotment of a plot in the said Scheme. Along with her application, the appellant had submitted an affidavit deposing as follows:- “1. That I or any member of my family (Spouse/dependent children) did not own a residential plot/house in Islamabad on 01.04.1996.

2.That I or any member of my family was never allotted a residential plot/flat in Islamabad by the Capital Development Authority, Federal Government Employees Housing Foundation, Defence Housing Authority or any other Government controlled agency.”

4.On 07.09.1999, F.G.E.H.F. provisionally offered allotment of a plot in the said Scheme to the appellant. After the said offer was accepted by the appellant, F.G.E.H.F., vide letter dated 04.04.2002, issued an allotment letter for Plot No.15, Street No.62, Sector G-13/2, Islamabad in her favour. The appellant deposited the entire price for the said plot on different dates for which receipts were issued to her. Thirteen years after the provisional offer for the allotment of the said plot to the appellant, F.G.E.H.F., vide letter dated 01.08.2012, cancelled the allotment in the appellant’s favour. Thereafter, the said plot was allotted by F.G.E.H.F. to respondent No.6. The said letter dated 01.08.2012 was assailed by the appellant in writ petition No.3911/2012 before this Court, which was disposed of vide impugned judgment dated 05.05.2017. The learned Judge-in-Chambers did not interfere with the said letter dated 01.08.2012 but directed F.G.E.H.F. to reimburse the amount deposited by the appellant. The said judgment dated 05.05.2017 has been assailed by the appellant in the instant appeal.

5.Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that the appellant

had not concealed any fact from F.G.E.H.F. in her application for the allotment of a plot or in her affidavit; that the appellant is an old infirm lady, and had paid for the said plot with her lifelong savings; that the appellant’s husband had purchased House No.67, Street No.34, Sector G-9/1, Islamabad from open market, and this is the address that the appellant had given in her affidavit; that the appellant and her husband have separated a long time ago and he lives in the United Kingdom; that had F.G.E.H.F. timely returned the amount deposited by the appellant, she could have invested the said amount and earned benefit therefrom; that the appellant’s case falls in paragraph (c) of the eligibility criteria set out in the brochure; that at no stage has any plot been allotted to the appellant or her husband by the Capital Development Authority (“C.D.A.”), or Defence Housing Authority (“D.H.A.”) or F.G.E.H.F.; and that strong vested rights were created in the appellant’s favour when the allotment letter dated 04.04.2002 was issued in her favour by F.G.E.H.F. Learned counsel for the appellant prayed for the appeal to be allowed and for F.G.E.H.F.’s letter dated 01.08.2012 to be set-aside.

6.On the other hand, learned counsel for F.G.E.H.F. submitted that in the provisional letter for allotment, it was clearly mentioned that if at any stage the documents submitted by the appellant with her application are found to be fictitious or false or if any material fact are found to have been concealed or mis-stated or suppressed deliberately, the allotment shall be liable to cancellation; that vide letter dated 04.07.2012, the C.D.A. informed F.G.E.H.F. that House No.67, Street No.34, Sector G-9/1, Islamabad was owned by the appellant’s husband since 28.01.1989; that the factum as to the ownership of the said house by the appellant’s husband was concealed by the appellant in her application for the allotment of a plot; that the appellant had submitted a false affidavit by deposing that she or any member of her family did not own a residential plot / house in Islamabad as on 01.04.1996; that F.G.E.H.F. was bound to cancel the allotment of the plot in the appellant’s favour due to the concealment of a material fact made by the appellant; that before cancelling the allotment, the appellant was issued show cause notice dated 09.07.2012 and she was given an opportunity to clarify her position; and that the impugned judgment dated 05.05.2017 does not

suffer from any legal infirmity and F.G.E.H.F. is ready to return the amount deposited by the appellant. Learned counsel for F.G.E.H.F. prayed for the appeal to be dismissed.

7.Learned counsel for respondent No.6 adopted the arguments of the learned counsel for F.G.E.H.F.

8.We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.

9.It is not disputed that a plot had not been allotted to the appellant or any of her family member by the C.D.A., D.H.A. or F.G.E.H.F. at the time when she applied to F.G.E.H.F. for the allotment of a plot in the Scheme. Under the terms of the brochure issued by F.G.E.H.F., the first priority for the allotment was to be given to applicants who or their family members did not own any plot or house in Islamabad as on 01.04.1996. The appellant along with her application had admittedly submitted an affidavit wherein she had deposed inter alia that she or any of her family members did not own a residential plot or house in Islamabad as on 01.04.1996. Learned counsel for the appellant did not deny the fact that the appellant’s husband had purchased House No.67, Street No.34, Sector G-9/1, Islamabad in 1989 and was the owner of the said house on 01.04.1996 as well as the date when the appellant applied for the allotment of a plot to F.G.E.H.F.

10.The vital question that needs to be answered is whether F.G.E.H.F. would have allotted a plot to the appellant had she disclosed the factum as to the ownership of House No.67, Street No.34, Sector G-9/1, Islamabad by her husband. The answer to the said question is an obvious no. In the provisional offer dated 07.09.1999 for the allotment of a plot to the appellant, it was clearly mentioned that if at any stage the documents submitted by the appellant with her application are found to be fictitious or false or if any material fact are found to have been concealed or misstated or suppressed deliberately, the allotment shall be liable to cancellation. F.G.E.H.F. cancelled the allotment of the plot in the appellant’s favour after receiving letter dated 04.07.2012 from C.D.A. that the appellant’s husband had owned a house in Islamabad since 1989. Therefore, we

are of the view that F.G.E.H.F. did not commit any illegality by cancelling the allotment of Plot No.15, Street No.62, Sector G-13/2, Islamabad.

11.The entire amount for the said plot still remains deposited with F.G.E.H.F. Learned counsel for F.G.E.H.F. did not come up with any plausible explanation for the delay of almost 13 years in verifying the correctness of the appellant’s affidavit that she or her family member did not own any residential plot or house in Islamabad. F.G.E.H.F. had made the provisional offer for the allotment of a plot to the appellant on 07.09.1999, whereas F.G.E.H.F. on 03.07.2012 wrote C.D.A. to verify as to whether the appellant or her family member owned a house in Islamabad. Had the F.G.E.H.F. been prompt in verifying the correctness of the appellant’s application or affidavit when she submitted the same, a plot would not have been allotted to her and she could have invested elsewhere the amount that she had deposited with

F.G.E.H.F.

12.In view of the above, we are not inclined to interfere with the impugned judgment to the extent whereby the appellant’s challenge to F.G.E.H.F.’s letter dated 01.08.2012 was turned down. As regards the return of the amount deposited by the appellant with F.G.E.H.F., we direct that the same be returned to the appellant along with markup at the rate of 10% per annum from the date of the deposit by the appellant till the date of re-payment by F.G.E.H.F.

13.Disposed of in the above terms.

(ARBAB MUHAMMAD TAHIR) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

ANNOUNCED IN AN OPEN COURT ON 13.10.2022.

JUDGE JUDGE

Sultan*