The petitioner through this Constitutional petition prayed that the impugned order dated 6.3.2003 passed by the Capital Development Authority Board on the recommendations of Allotment Scrutiny Committee in its meeting dated 5.10.2002 he declared without lawful authority and discriminatory, mala fide as well as against the fundamental rights available to the petitioner under Articles 4, 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and he be declared entitled to allotment of 5 marlas residential plot as affectee of Islamabad Capital Territory (Revenue Estate Malpur) and on the basis of scheme announced in 1963.
2. Briefly the facts relevant for the disposal of this Constitutional petition are that the petitioner is an affectee of Islamabad Capital Territory and was displaced from village Tathi, situated in the revenue estate Malpur, District. Islamabad. The respondents acquired the house of the petitioner vide award dated 4.4.1963 and the same land was allotted to UAE embassy. The petitioner filed an application on 23.12.1974 for the allotment of residential plot in the scheme announced by the respondents but thereafter no action was taken by the respondents on the application of the petitioner. He moved application on different occasions to the Chairman, Capital Development Authority, as well as the Prime Minister and President of Pakistan but his request was not acceded to. He moved an application to the Federal Ombudsman on 16.1.2001, who vide order dated 1.9.2001 directed the respondent to take action. Since no decision was rendered; the petitioner again approached the Federal Ombudsman and this time the respondent in obedience to the direction considered the case and rejected the claim.
3. In response to the notice in writ petition, the respondent entered appearance, filed report and parawise comments, wherein it is stated that the petitioner has already been paid the compensation for the house acquired vide D.C., Capital Development Authority Award dated 4.4.1963. As for rehabilitation benefit in the form of residential plot, his case has been examined, but he was not found entitle to the same.
4. The learned counsel for the petitioner contends that the petitioner's brother was, similarly placed and similarly circumstanced, has been allotted Plot No, 499 in Mar gala Town whereas he is being treated with sheer discrimination; that the finding of Federal Ombudsman to consider the petitioner's case on the basis of equity and justice did not weigh with favour and the petitioner's case was rejected by. the Board on the ground which are not sustainable in law.
5. Conversely, the learned counsel for the respondent authority opposed the petition on the ground that he was neither owner of the land beneath the built up property nor his built up property fall in Abadi Deh.
6. I have considered the respective contentions of the learned counsel for the parties and perused the record.
7. The petitioner is an affectee of village Malpur. His property consisting of residential house and land was acquired by C.D.A. vide Award dated 4.8.1963. His name appears at Serial No, 418-419 of the award. He made an application for allotment of the plot on 23.12.1974 vide Receipt No,
126. Bank draft amounting to Rs, 200/- Bearing No, 598698/53 dated 6.5.1975 was submitted to the C.D.A.
From the record, it appears that Ghulam Nabi, his real brother, was allotted plot. He and his brother were living in adjoining residential houses with a common courtyard. Built up property/super- structure of the houses acquired by the respondent belonged to the petitioner. It was located in Abadi deh as is evidenced by the copy of Award. The petitioner and his brother Ghulam Nabi applied for allotment at one and the same time. Contention of the C.D.A. that his house was not located in Abadi Deh, is not correct in view of the list showing the cost of the houses in village Malpur acquired by the respondent. The petitioner's name figured therein. Compensation was also paid to him. At one point of time, the contention of the respondent authority was that the case of the petitioner could not be processed as he failed to furnish an affidavit. However, on scrutiny of the file by the office of the Federal Ombudsman the affidavit was found placed on the file of the C:D.A.
8. The petitioner hag applied in time, deposited the cost, submitted an affidavit and is running from pillar to post since 1974 for the allotment of the plot. His brother has been granted the facility.
Federal Ombudsman had recommended for consideration of his case which is at par with the case of his brother but the Board of the respondent has given a deaf ear to the petitioner's request.
9. The discrimination is floating on the surface of the record. The case of the petitioner is at par with the case of Ghulam Nabi, his real brother. The petitioner being similarly placed and similarly circumstanced cannot be treated with different yard stick. Apparently, he is meted out with A sheer discrimination. The petitioner is entitled to be dealt with equally in view of the provisions of Articles 4 and 25 of the Constitutional of Islamic Republic of Pakistan, 1973 as interpreted by their lordship in the Supreme Court of Pakistan in the cases of Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others (PLD 1990 SC 1092); 'Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi (PLD 1991 SC 14); Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCM R 641); Government of NWFP through Secretary and 3 others v. Mejee Flour and General Mills Private Ltd. Mardan and others (1997 SCM R 1804); Airport Support Services v. Airport Manager Quaid-e-Azam International Karachi and others (1998 SCM R 2268) and Nizam-ud-Din and others v. Civil Authority and 2 others (1999 SCM R 467).
10.In view of the above discussion this Constitutional petition is allowed, the impugned order passed by the C.D.A. dated 6.3.2003 is set aside.
Resultantly, the petitioner is held entitled to allotment of 5 Marla residential plot as affectee of Islamabad Capital Territory (Revenue Estate Malpur) on the basis of scheme announced in 1963.
The respondents are directed to allot him plot of 5 marlas in accordance with his application dated 23.12.1974 and the scheme then in vogue.