MUSHIR ALAM, J. --- The petitioner has impugned the dated 27.5.2005 issued by Director T&R Pakistan Defence Officers Housing Authority Karachi in respect of cancellation of the Plot No. 6-C, Bokhari Street No. 5, Phase-VI, measuring 100 square yards, Pakistan Defence Authority, Karachi.
2. It was contended by the learned counsel for petitioner that petitioner was lawfully allotted the subject plot. He being cadet in 16 long courses, Pakistan Military Academy as per Bye-Laws No. 7 of authority's predecessor, having earned category 'A'.
3. As against this Mr. Khalid Jawaid learned counsel for respondent No. 2 has denied the eligibility and entitlement of the petitioner to earned category 'A' membership. According to him, the petitioner by misrepresentation manipulated to obtain the membership in category 'A'. According to Mr. Khalid Javaid; allotment of the subject plot is only entitlement of category 'A' members. He has drawn our attention on the Membership Application Form of the Petitioner, wherein his name is mentioned as 'Capt. Mohammad Iqbal'. It was stated that on coming to know that the petitioner is not Captain of Pakistan Army and was made a member based on misrepresentation. The Scrutiny Committee, after due enquiry and notice to the petitioner recommended for cancellation, which was also approved by the Executive Board. Mr. Khalid Jawaid has placed the reliance on the case reported in Mustafa Lakhani v. Pakistan Defence Officers Housing Authority Karachi (PLD 2005 Karachi 188), which judgment upheld by the Honourable Supreme Court in C.P. 631-K/2004 (Mustafa Lakhani v. Pakistan Defence Officers Housing Authority Karachi) vide judgment dated 1.11.2005. In the cited case, the petitioner claimed that he was allotted a plot in a meeting, whereas, the Enquiry Committee disputed that on the given date no meeting of the Managing Committee was held, Division Bench being satisfied that no meeting on the given date was held maintained the cancellation. Such finding was upheld by the Honourable Apex Court. It was further held "that it settled principle of law that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities. The whole series of such orders together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal, the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. It was observed that "from basis of allotment being illegal, void ab initio, consequently no legal right was conveyed as such payment and execution of "A" lease in favour of petitioner was illegal void ab initio hence of no effect and would not create any right or privilege in favour of petitioner in respect of said plot, therefore, the respondents were quite competent to cancel the allotment of plot tinder proviso (1) of Article 17(h) of the President's Order No. 7 of 1980". Therefore, it was, urged that in instant case also the very foundation was based on misrepresentation and does not support the superstructure built thereon.
4 Exercising the right of rebuttal, Mr. Mohammad Saleem Mangrio learned counsel appearing for petitioner has relied on the case reported as Pakistan Defence Officers Housing Authority, Karachi v. Munir Ahmed Ghulam Mustafa Akhtar (2006 SCMR 178). In cited case, also DHA cancelled the plot of the' respondent on the ground that he was illeligible for the allotment under its Byelaws as he was not the officer of the Armed Force. High Court, however, struck out the cancellation. Honourable apex Court maintained the finding recorded by the High Court. It was observed that it is not disputed that the petitioner, while serving in Military Accounts Service was being paid from defence budget/estimates, was enrolled as member of the erstwhile Society way, back in 1971, and as such was entitled to allotment of a residential as well as commercial plot as per' byelaws of the Society. It was observed that at the relevant time he was drawing salary from the Military Accounts Service, therefore, the allotment was validity made.
5. Examined the case of petitioner, in the tight of above , it may be observed that byelaw No. 7 of the then Pakistan Defence Officers Co-operative Housing Society Limited provided as follows:--- "The membership of the Society will be confined to the following:---
(i) Officers of the. Pakistan Armed Forces and Civilian Officers" 'paid from the Defence Services Estimates.
(ii) Officers of the Armed Forces who have been released either in PAKISTAN or pre-partitioned India and who have subsequently acquired PAKISTAN nationality.
(i.e) Certain Officers working in the Ministry of Defence/Military Finance, at the discretion of the Managing Committee. This does not include organizations working under Ministry of Defence, e.g., P.I.A., Shipyard etc.' (Underlined to and emphasis) examined the case of petitioner, in the light of above, Petitioner claims that he was though a captain in P.I.A. Was a Gentleman Cadet in the Army, as such was eligible. It was argued that such fact was mentioned by him, beneath his named at the time of making application, which fact is not disputed. There is no date on the Application Form through the original thereof was produced in Court. Nevertheless, Application Form must have been filed before the meeting of the Board was held on 14.4.1981.
5. The respondent No. 2 has placed on record a certificate from the Military Camp, Kakool, dated 24.9.1957, which shows that petitioner, did not achieve the standard of military attainments, required of an any officer and has, therefore, been withdrawn. Therefore, at the relevant time of filing application he was not enjoying his possession even as a Gentleman Cadet. He did not qualify the required standard and was withdrawn, therefore no title of Gentleman Cadet was even conferred upon him, therefore, contention of Mr. Mohammad Saleem Mangrio learned counsel for petitioner that he had mentioned beneath his name in capital letter "GC" could not refer his designation/position held.
6. Mr. Khalid Javaid is correct to urge that title/designation or position held by a 'person always precedes or is prefix to his name., The petitioner in his application form had described his name as Capt. Muhammad Iqbal. In the first reading, one gets an impression that "Capt." Refers to Captain in Pakistan Army, even nowhere through out the petition he has mentioned that he is a Pilot in P.I.A.
We have examined bylaws of the then DHA. Category "A" membership was specifically reserved for the Offices of the Armed Forces and Civil officer paid from the Defence Services estimate and other categories of the officers of Armed Forces during pre-partitioned time. Bye-laws 7(i.e) specifically excludes Certain Officers working in the Ministry of Defence Military Defence. Defence e.g. PIA.'
Shipyard etc., therefore, it cannot be assumed that on the strength of his being Captain in P.I.A, petitioner could qualify the membership under the Bye-law No. 7.
7. In the case relied upon by Mr. Mangrio reported as Pakistan Defence Officers. Housing Authority, Karachi v. Munir Ahmed Ghulam Mustafa Akhtar (2006 SCMR 178) supra the respondent therein, at the relevant time when the allotment was made was drawing his salary from the Defence Budge Estimated. In the instant case, admittedly, the petitioner's name was drawn in the ballot held on 14.4.1981. He was withdrawn as Gentleman Cadet - on 24.9.1957, which fact he does not dispute.
Honourable Supreme Court while upholding case of Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi (PLD 2005 Karachi 188)" reiterated principal laid down in Yousuf Ali Case (PLD 1958 SC '104). It was ruled that "very basis of the allotment being illegal, void ab initio, consequently no legal right was conveyed. In instant case also foundation of the allotment is resting on misrepresentation, a person cannot be allowed to retain ill-gotten gain. Court will not come to and of a person to retain a benefit or privilege to which he was not entitled at the very inception.
8. Writ jurisdiction is a discretionary jurisdiction and could only be invoked in and of justice and not to perpetuate injustice. Accordingly, the petition is dismissed in limine alongwith listed application.