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Petitioner: EDNAN SYED and others VS Respondent: FEDERAL GOVERNMENT EMPLOYEES' HOUSING JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:EDNAN SYED and others vs FEDERAL GOVERNMENT EMPLOYEES' HOUSING
JUDGMENT
Reported As: 2017 CLC 1002 Result: Order accordingly Judgment JUDGMENT ' MIANGUL HASSAN AURANGZEB, J.--- All eleven petitioners in this writ petition are employees/former employees of autonomous/semi-autonomous public sector organizations. The prayers sought by the petitioners are as follows:- "In the light of foregoing submissions, it is most humbly prayed that: i. The Respondents be restrained from taking any adverse action against the First Drive members, including the petitioners, for their refusal to deposit Rs.600,000/- for purchase of land at the Green Enclave Scheme; ii. The Respondents be restrained from unilaterally and retrospectively altering the terms of membership of the First Drive Members, including the Petitioners; iii. The Respondent No.1 be restrained from allotting any plots to the members registered under the Phase-II Drive in Sector F-14 and any other scheme until such time when the backlog of the First Drive Members, including the Petitioners, has been cleared; iv. The Respondents be directed to maintain the seniority of the First Drive Members, including the Petitioners, from the date of their subscription as members of the respondent No.1; v. The Respondent No.1 be directed to consider the First Drive Members, including the Petitioners, for allotment in all future schemes including F-14 launched by the Respondent No.1; vi. Allotment made to Phase II Drive members be declared illegal and void ab initio; vii. Respondent No.1 be directed to cease transfer of plots allotted to Phase II Drive members to avoid 3rd party right till the decision of the case."
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2. The gist of the case is that in 2009, respondent No.1 (Federal Government Employees Housing Foundation), through a public advertisement, launched a membership drive for the registration of Federal Government Employees ("FGEs") under which seniority of the registered members was based on the date of registration/' first-comefirst-served' basis ("Membership Drive-I"). The petitioners got themselves registered and paid the requisite registration fees. Prior to this, seniority was determined on the basis of FGE's age and seniority in Government service. After thousands of FGEs were registered under the said membership drive, the respondents decided to revert to the age-wise seniority and allot plots in Sector F-14, Islamabad, to FGEs on the said basis ("Membership Drive-II"). The petitioners assert that this reversion could destroy their vested rights to get a plot on "first-come-first-served" basis. The petitioners are also aggrieved by respondent No.1 's decision to confine the members registered under Membership Drive-I (initiated in 2009), to respondent No.l's housing scheme in Barakahu. ' CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS:- 3. Mr. Babar Sattar, learned counsel for the petitioners submitted that the primary object of respondent No.1 is to eradicate shelterlessness for the serving and retired FGEs, and for other specified groups, and assist them in having a house at the time of their retirement or earlier; that respondent No.1 can also initiate, launch, sponsor and implement housing schemes for the FGEs, etc.; that prior to 2009, respondent No.1 offered housing in a particular housing scheme to the FGEs on the basis of their age and seniority in the government service: that in 2009, Membership Drive-I was launched whereunder, housing was offered in all the housing schemes of respondent No.1 on 'first-come-first-served' basis; that under this membership drive, a member/FGE was entitled to an allotment of a plot in any future scheme of his choice; that in the categories of members created by respondent No.1, the employees of autonomous bodies had a 10% quota; that the petitioners are the employees of autonomous bodies; that thousands of people, including the petitioners, were registered under this membership drive; and that in any future housing scheme of respondent No.1, only the registered members were to be accommodated. 4. It was further submitted that under Membership Drive-I, if an offer for an allotment of a plot by respondent No.1 in a particular housing scheme was not accepted by a registered member, he would continue to retain his seniority, and could opt for any other housing scheme launched by respondent No.1; that respondent No.1, on 30.04.2015, after the approval of the Prime Minister, launched Membership Drive-II; that the essential difference between Membership Drive-I and Membership Drive-II was that the former was on "firstcome-first-served" basis, whereas the latter was to be based on seniority in age and government service; that the launch of the Membership Drive-II could not adversely affect the seniority of FGEs registered under Membership Drive-I; that Membership Drive-II Was launched to accommodate senior government officials in Sector F-14, Islamabad; that these government officials had not applied for membership under Membership Drive-I; that this was done regardless of the suggestion by the Director (Law) of respondent No.1; that the new membership drive should be launched with prospective effect; that the members under Membership Drive-I have been unlawfully confined to respondent No.1 's housing scheme at Barakahu, Islamabad; that there is a marked difference between the value of land in Barakahu and Sector F-14, Islamabad; that the respondents could not relegate the members registered under the Membership Drive-I to the housing scheme at Barakahu, Islamabad; that simply because a member under Membership Drive-I does not accept an offer for allotment in Barakahu, should not disentitle him from opting for an allotment of a plot in Sector F-14, Islamabad; that respondent No.1 could not invite applications for allotment of plots in Sector F-14, Islamabad, unless all the members under Membership Drive-I were accommodated by allotment of plots; that Membership Drive-I was advertised for all the future housing schemes of respondent No.1, and not just for the one in Barakahu; that a member under the Membership Drive-I continues to retain his seniority and
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eligibility for an allotment of a plot regardless of whether he declines to accept the offer for an allotment of a plot in a particular housing scheme; and that Membership Drive-H was to be prospective and could not in any manner affect the seniority of the members already registered under Membership Drive-I. He further submitted that the respondents are estopped from violating the petitioners' vested rights under the doctrine of promissory estoppel. Learned counsel for the petitioners prayed for the writ petition, to be allowed. In making his submission, learned counsel for the petitioners placed reliance on the law laid down in the cases titled as Federal Government Employees Housing Foundation v. Muhammad Akram Alizai (PLD 2002 SC 1079), Munir Ahmed v. Mst. Shirin (2015 SCMR 441), Muhammad Shcfique v. Zafar Abbas (2004 YLR 1047), Muhammad Raza v. Jammu and Kashmir Cooperative Housing Society (PLD 2013 Islamabad 49), and Muhammad Riaz Mehmood v. Secretary, Government of Punjab (2016 PLC (C.S) 354). CONTENTIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS:- 5. Chaudhry Mansoor Ahmad, learned counsel for respondent No.1 assisted by Malik Zafar Abbas, Director Law, submitted that respondent No.1 is a welfare organization registered under Section 42 of the Companies Ordinance, 1984; that respondent No.1 does not issue any dividends, and operates on "no-profit-no-loss" basis; that respondent No.1 has been given a mandate by the Federal Government to evolve housing schemes for FGEs, so that their problems regarding shelterlessness is resolved; that up till now, six housing schemes have been launched by respondent No.1; that respondent No.1 does not have the land-bank to provide a plot to each and every FGE; that the Hon'ble Supreme Court in the Human Right Case No.5818 of 2006 (2008. SCMR 531) has held that FGEs do not have a right to get a plot; that the provision of a plot/housing to any FGE is a matter of grace/concession shown by the Federal Government to FGEs; and that respondent No.1 evolves housing schemes on self-finance/contributory basis. 6. He further submitted that all housing schemes of respondent No.1 prior to the initiation of Membership Drive-I, were based on age-wise seniority; that there was no legal infirmity in respondent No.1 's decision to revert to age-wise seniority; that the problems of FGEs nearing retirement, who did not get themselves registered under Membership Drive-I, had to be addressed so that they were not left shelterless; that the petitioners had filed this petition on the basis of representations made by respondent No.1 with respect to Membership Drive-I; that these representations were in fact only an invitation; that FGEs and other eligible persons secured membership/registration by making a nominal deposit that under Membership Drive-I, 36,000 persons were registered, and more than 50% paid the down payment for plots; that presently, there are no plots available for allotment; that money has been collected from respective members, which is to be used for the purchase of land directly from land providers, and in the land acquisition process; that respondent No.1 follows the principle of ' firstscheme-first'; that when the allotment of plots in respondent No.1 's housing scheme in Barakahu have been completed, only then will the allotments in the housing scheme in Sector F-14, Islamabad begin; that unless money for the purchase of plot is deposited by a member, there will be no enforceable contract between the member and respondent No.l. 7. It was further submitted that the petitioners are not claiming the enforcement of any right under a statute; that at no material stage was any contract executed between the petitioners and respondent No.1; that mere deposit of the registration fee does not create a contract between the petitioners and respondent No.1; that an applicant has to agree to a payment schedule as well as the terms and conditions of the brochure for a particular housing scheme for there to be a contract; that respondent No.1 is not denying that it has made a promise, but there is no concluded contract between the petitioners and respondent No.1 in terms of Section 2(a) of the Contract Act; that no consideration has been paid by the petitioners; that the promise made by respondent No.1
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never turned into an agreement; and that the promise made by respondent No.1 could not be specifically enforced. 8. It was further submitted that the whole structure of respondent No.1 was based on participatory contribution; that the petitioners, by declining the offer for allotment of a plot in respondent No. 1 's housing scheme in Barakahu, Islamabad, forfeited their rights to an allotment in any other housing scheme in terms of Sections 64 and 67 of the Contract Act; that respondent No.1 never made a promise to give a right of choice to the members under Membership Drive-I; that as the Barakahu Housing Scheme was the first housing scheme in time after the launch of Membership Drive-I, allotments had to be first made in the said scheme; that a legal right is gained only when a deposit for the purchase of plot has been paid by another; that no right accrues without such deposit having been made; that the payment of the registration fee for a membership is not a deposit for the purchase of a plot; that an option has already been given to the members of Membership Drive-I to join Membership Drive-II; that several members have already exercised this choice; that the petitioners were issued consent letters, but they refused to deposit the required amount; that presently about a thousand members have submitted their consent letters; that the last date for the submission of the consent letters in Membership Drive-I for the Barakahu Housing Scheme was 31.07.2016; that all 11 petitioners were asked to submit their consents, but they refused to submit their consents or to make a deposit for a plot in respondent No. 1 's housing scheme in Barakahu, because they wanted plots in Sector F-14, Islamabad. 9. It was further submitted that in filing the writ petition, the requirements of a representative suit under Order I, Rule 8 C.P.C., have not been fulfilled; that there are only 11 petitioners in this writ petition while there are thousands members registered under Membership Drivel; that respondent No. l's decision regarding the launch of Membership Drive-II, does not suffer from unreasonableness; and that the petitioners have not been discriminated against. Learned counsel for respondent No.1 prayed for the writ petition to be dismissed. In support of his submissions, learned counsel for the respondent relied upon case law titled as Syed Muhammad Saleem v. Ashfaq Khan (1989 CLC 1833), and Human Right Case No.5818/2016 (2008 SCMR 531). ARGUMENTS OF THE LEARNED COUNSEL FOR THE PETITIONERS IN REBUTTAL: 10. In rejoinder, the learned counsel for the petitioners submitted that the petitioners were entitled to seek the best possible plot in any of respondent No.l's housing schemes; that the promise made by respondent No.1 in 2009, was accepted by the petitioners by depositing the registration fee, therefore, they had a right to hold the respondents to their promise; that the respondents had no right to change the membership criteria retrospectively; that the respondents could not exclude the petitioners from the future housing schemes by changing the membership criteria. He further submitted that the learned counsel for respondent No.1, in his submissions did not address the question whether the petitioners and other members under Membership Drive-I were to be confined to respondent No. 1 's housing scheme in Barakahu, Islamabad. 11. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. 12. The record shows that on 03.09.2009 an advertisement was published by respondent No.1 in the Daily 'Jang' representing that respondent No.1 had launched a membership drive for the registration of FGEs. The registration form for the above purpose was available on respondent No. 1 's website and also at branches of Askari Bank Limited. The salient features of the said membership drive were stated to as follows:-- Membership drive approved by Prime Minister; ' All Federal Government Employees including the fresh entrants who were in service on 01.07.2009 or thereafter are encouraged to apply; ii Membership requires one time registration fee for entitlement in future schemes;
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iii. The registration fee would be refundable/adjustable towards cost of plots/apartment with 2% service charges; iv. Registration counts from the date of deposit of fee; v. Seniority of members would be based on the date of deposit of fee. In case of tie on the date of deposit of registration fee, the age-wise seniority would be made criteria; vi. All members would have to pay progressively rising periodical contributions towards the cart of plot/apartment; vii. Registration fee with application form to be deposited in designated branches of Askari Bank." 13. The membership drive launched by respondent No.1 came under discussion in the 107th meeting of the Executive Committee of respondent No.1 held on 01.07.2009. In this meeting, the Chief Executive of respondent No.1 pointed out that "anomalies in the past emerged, primarily as fresh registration was required for every new scheme." Furthermore, it was pointed out that "this scheme based membership conditionality created more problems than what were intended to be resolved, particularly for employees approaching retirement but deserved most attention of the welfare body ..." The new proposal was made with the intention to provide every FGE with a chance to own a house or an apartment. A sub-committee was constituted to devise a system for the launch of the membership drive and for developing a brochure. 14. Respondent' No.1 had prepared a working paper for the 108th meeting of the Executive Committee. This wprking paper contained clarifications and explanations regarding various aspects of the membership drive. According to this working paper, the membership drive had been cleared by the Executive Committee of respondent No.1, and approved by the Prime Minister of Pakistan; it was launched by the Ministry of Housing and Works on 28.08.2009; and 6,000 employees had got themselves registered, and had deposited Rs.148 million. Two essential questions regarding the membership drive were answered as follows:- "xiii ... How would be seniority determined?: (The seniority would be determined on "First Come First Serve" based on date of deposit in the relevant category. In case of more than one applicant on a particular date in a category then age-wise seniority would be made the criteria for that particular date.)... xv. ... Would Government Servant be also allowed to apply for any scheme of the Foundation whenever launched subsequently? Would they be considered junior to those employees who had got themselves registered earlier? (Government Servants would not be allowed to apply directly to FGE Housing Foundation for any scheme whenever launched Kn future. Only the registered employees would be entertained for the future schemes.)" 15. On 09.09.2009, the 108th meeting of the Executive Committee of respondent No.1 was held. By this date the number of registered employees had risen to 9,000 and the amount deposited by them was more than Rs.200 million. The clarifications discussed and approved in this meeting included the aforementioned clarifications contained in the working paper. Respondent No.1 prepared another working paper for the Executive Committee which shows that on 01.04.2009, respondent No.1 had executed an agreement with a private limited company for purchase of 3,000 kanals of land in Revenue Estates Sakreela, Phulgran and Bobari, near Bharakahu, Islamabad. 1,650 kanals had been transferred to respondent No.1 on 10.04.2009, and subsequently another 960 kanals were transferred to it. According to this working paper, 17,581 FGEs had been registered under the membership drive; and that respondent No. 1 's scheme in Bharakahu was the first available project where developed plots would be offered to the registered FGEs. 16. Annexed to the writ petition is an undated letter from respondent No.1 and its joint venture partner, M/s EHFPRO (Pvt.) Limited, to the registered members of respondent No.1, informing them about the project called "Lifestyle Residency" for building apartments. The inventory (i.e. The
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apartments) was said to be limited and available to members registered with respondent No.1 on 'first-come-first-served' basis, where precedence was set on the basis of the date of joining the membership drive. 17. The petitioner has brought on record the "questions for oral answers and their replies" to be asked at Session of the Senate of Pakistan to be held on 23.08.2013. In this Session, the government's position was explained by Senator Mr.Usman Ibrahim, Minister for State for Housing and Works, in the following terms:- "(a).Federal Government Employees Foundation announced Membership Drive on 28th August 2009 with the approval of the Prime Minister of Pakistan. Membership requires one time registration fee for entitlement of plot/apartment in all future schemes of FGE Housing Foundation. Askari Commercial Bank is authorized to collect the Membership Drive Fee. (b). There are two projects in pipe-line:- (i). Proposed Housing Scheme at Bara Kahu, Zone-IV, Islamabad. The project will be completed in 30 months after issuance of NOC from CDA. The exact, date of launching could however not be instantly given as the project is subjudice before the Honorable Supreme Court under Suo-Motu." (ii) G-14 storey apartments scheme in Sector G-13, Islamabad. The project will be completed to 48 months after launch. The tentative date of launching is August 2013. The Housing Foundation is, instantly, pursuing CDA for issuance of NOC for the project. (c) Registration/Seniority of members is based on the date of deposit of fee on first come first serve basis. Only the registered employees would be entertained for allotment in all future scheme." 18. On 30.08.2013, the 127th Meeting of the Executive Committee of respondent No.1 was held. The minutes of this meeting show that Membership Drive-I came under criticism. The following is an extract from the minutes:- "5. ... The Chairman of the Executive Committee further ordered to submit a copy of "The summary to Prime Minister" to his office to have fair assessment of the procedure for allotment of plot, allocation of quota (52% quota on first come first serve basis) and allotment of plots to the senior civil government employees under 20% quota. Allotment policy on "first come first serve" essentially deprive the senior government officers of their genuine right of having a plot at the fag end of their career. Further, those senior officers posted in far flung areas like in Gilgit Baltistan, Balochistan, FATA and Sindh who did not apply in time, will be deprived to have a plot. But they could have one, had it been announced as per Housing Foundation's standard policy of allotment on seniority basis." 19. The Executive Committee of respondent No.1 in its 131st Meeting held on 25.06.2014, observed that the criteria of allotment on the basis of 'age wise seniority' was more appropriate and reasonable vis-a-vis the criteria of 'first-come-first-served'. In this meeting, it was decided that the criteria for allotment based on ' first-come-first-served' should be reviewed and a summary be moved to the Prime Minister for the restoration of the criteria based on 'age wise seniority' for Bharakahu (Phase- VI) and for all future schemes, including Bharakahu Extension. In this very meeting, it was inter alia, decided to take up the matter regarding allocation of land at Kuri Road and Sector F-14, Islamabad, by respondent No.1 with the Capital Development Authority. 20. On 15.12.2015, another advertisement was published by respondent No.1 informing the general public about the launch of Phase-II of the membership drive i.e. Membership Drive-II. The essential feature of this membership drive was that the seniority of members was to be determined on the basis of the applicants' age. However, the seniority of the members already registered on ' first- comefirst-served' basis under the early membership drive (i.e. Membership Drive-I) was to remain intact.
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21. The Executive Committee of respondent No.1 in its 133rd meeting held on 17.06.2015, was informed that some of the successful applicants in Membership Drive-I were not interested in getting a plot in respondent No.l's housing scheme at Bharakahu, and that they had declined to accept the offer made by respondent No.l. The Executive Committee of respondent No.1 decided that such applicants should be deemed to have forfeited their seniority as well as their entitlement to a plot in respondent No.l's housing scheme at Bharakahu. It was also decided that such an applicant may be considered for fresh registration in Membership Drive-II, which has an age wise seniority criteria. 22. On 27.04.2016, respondent No.1 sent letters to the petitioners, who were registered as members under Membership Drive-I, informing them about the progress in the acquisition of land for respondent No. l's housing scheme at Bharakahu, and that funds were required for the purchase of land. Furthermore, the petitioners were offered plots in respondent No. l's housing scheme at Bharakahu (Phase-IV) on 'firstcome-first-served' basis. The petitioners were required to pay Rs.600,000/- as down payment for the cost of land to respondent No.1 within a period of thirty days, if the said offer was acceptable to them. In the event, the petitioners did not deposit the said amount, it was to be presumed that they were not interested in the said housing scheme, and their candidature was to be passed on to the next senior most member on the waiting list of the scheme. 23. At page-119 of the petition is annexed the membership form for Membership Drive-I. This form does not restrict the membership of an applicant for any specific housing scheme. However, respondent No.1 subsequently issued the registration form for Membership Drive-I which was restricted to respondent No. 1 's housing scheme at Bharakahu. On 31.05.2016, it was reported in the Daily Express Tribune that a meeting of the Senate Standing Committee on Housing and Works had taken place on Monday, 30.05.2016 on issues related to respondent No.1's housing project at Bharakahu. Furthermore, it was reported that the Committee was…
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