W.P.No.5759 of 2007.

02.03.2011.

Raja Muhammad Munir, Advocate.

Mr.Muhammad Farooq Hussain Butt, Advocate.

IJAZ UL AHSAN, J:- Brief facts leading to the filing

of this petition are that Defence Housing Authority, Lahore Cantt.
Lahore announced Defence Housing Scheme Phase VII in the year
2006. The said scheme was widely publicized. The petitioner who
was then serving at Queta in Balouchistan Levis submitted an
application for allotment of a plot on 02.06.2006 through the Bank
of Punjab at Quetta. He was given an acknowledgment of the said
application. He deposited the requisite amount for securing a plot
in Phase VII of DHA. Petitioners application was included in the
balloting process. As a result of the balloting the petitioner was
intimated by DHA that Plot No.780, Phase VII Block-Q had been
allotted to him in open balloting. He was, therefore, required to
deposit the first installment of development charges on or before
December 31, 2006. Said installment of Rs.159,750/- was
accordingly paid on 29.12.2006.
2.

To the utter surprise of the petitioner, he received a notice

from DHA on 02.04.2007 informing him that the plot in his favour
has been cancelled for the reason that he was ineligible for
allotment of plot. The petitioner approached the respondent
through letters and other communications seeking redressal of his
grievance and revival of his plot. However, the plot in question

W.P.No.5759 of 2007.

was not revived. He, therefore, approached this Court for redressal
of his grievance.
3.

The learned counsel for the petitioner submits that the

action of the respondent is illegal in view of the fact that he has

been condemned unheard. He was neither given an opportunity to
defend his position nor was he given any notice before such
cancellation. He further argues that once money had been paid and
plot had been allotted to the petitioner, an agreement had come into
existence between the parties, which could not unilaterally and
arbitrarily be cancelled. He has also stressed the principle of locus
ponetentiae and estoppel to argue that the respondents in the facts
and circumstances of the case are estopped from denying the
petitioner a right to the aforesaid plot.
4.

The learned counsel appearing on behalf of DHA has

drawn my attention to the application form for civilians which is

attached with the petition and had admittedly been submitted by
the petitioner. The said application form prescribes criteria for
allotment of plots to civilians. Under the captioned terms and
conditions for registration, the following condition appears:5.
No amount will be refunded in case of particular
given in registration form are found to be incorrect or in
violation of eligibility moreover such cases will be declared
ineligible for present as well as for future benefits of DHAs.
Eligibility. Civilians of following category are
6.
eligible to apply for allotment of plot.
c.
Serving Civilian Gazetted Officers paid out of
Defence Estimates with 20 years of service and above as on
31 May 2006 having no benefit in DHAs/AWHS.
This was termed as category M and was so indicated in
the application moved by the petitioner. It has been pointed out
that once the balloting had been completed, the eligibility of
successful applicants was subject to confirmation by DHA. It has

W.P.No.5759 of 2007.

been pointed out that when the eligibility of the petitioner was
counterchecked, it was found that he was an employee of
Balouchistan Levis as an Inspector with a total service of 14 years
and 8 months at the relevant time, he, therefore, did not meet the
criteria of 20 years of service. It is further pointed out that
Balochistan Levis does not fall in the category of Serving Civilian
Gazetted Officers paid out of Defence Estimates. It is, therefore,
submitted that the petitioner was clearly ineligible even according
to the category he had himself identified. It was in this background
that his allotment was cancelled.
5.

I have heard the learned counsel for the parties and have

gone through the record. The terms and conditions of allotment

were clearly and specifically mentioned in the application form for
civilians. These terms and conditions are clear and unambiguous
insofar as it is clearly mentioned that allotment can be cancelled, if
a person is found ineligible. Despite the fact that the petitioner
submitted a form which was included in the balloting. He was one
of the successful applicants and paid the aforesaid amount yet
when it was found that he did not meet the eligibility criteria, he
was immediately informed about the same and the plot in question
was cancelled.
6.

The learned counsel for the respondent has also drawn my

attention to the fact that condition No.5 clearly stipulates that in

case the person is found ineligible no amount will be refunded. It is
common ground between the parties that the petitioner had paid
aggregate sum of Rs.159,750 towards development charges and a
sum of Rs.80,000/-

on 08.06.2006. If the petitioner had been

found ineligible, the said amount should have been refunded in all
fairness. Nothing has been arguing or shown to indicate that the

W.P.No.5759 of 2007.

petitioner

had

intentionally

and

malafidely

given

wrong

information or made an attempt to defraud the respondent. Even

otherwise, once the allotment had been cancelled, there was
nothing to stop the respondents from refunding the money simply
by making out cheques/pay order in favour of the petitioner and
dispatch it to his address. This was obviously not done. The
respondent has to act fairly and reasonable and not in arbitrary
manner and penalizing a person without due process of law. I find
that item No.5 in terms and condition is in the nature of penalty
and is not enforceable. The respondent society has had used the
aforesaid funds in the following manner:Rs.80,000/-

From 08.06.2006

Rs.159,750/-

From 31.12.2006.

I, therefore, with the consent of the learned counsel for the

parties direct the respondent to refund the aforesaid amounts
together with markup calculated @ Rs.10% per annum in the case
of first payment of Rs.80,000/- from 08.06.2006 and in case of
second payment of Rs.159,750/- w.e.f 31.12.2006 till the date of
payment. The said amount shall be refunded to the petitioner
within a period of 15 days from today.
7.

This writ petition is accordingly disposed of with the above

directions.

(IJAZ UL AHSAN)
JUDGE
A.Rehman.