ORDER SYED HASSAN AZHAR RIZVI, J.---An application dated 4-5-2010 sent by one Asrar Alam Shaikh received by the office and placed before the then honourable Chief Justice of this Court who converted it into a Constitutional Petition and notices were directed to be issued to the Administrator DHA and the learned D.A.-G. As well as the petitioner.
2. The brief facts as narrated in the application moved by the petitioner precisely are that in the year 2003 a project known as CREEK VISTA has been announced by the Pakistan Defence Officers Housing Authority through balloting; the petitioner participated; out of draw the petitioner was declared a successful candidate and a 3-Bedroom Apartment has been allotted in the name of the petitioner. The DHA issued a schedule of payment with an agreement (placed on record), according to which the said project would be completed within three years i.e. Upto 2006 and if a delay is caused for any reason, the DHA would pay Rs.25,000 per month to the allottees as penalty till possession of the apartments. The said project has not been completed in time and the DHA announced a new date through a newsletter in December, 2006, by extending the completion date i.e. 30-6-2007 and it has been stated therein that due to non-availability of qualitative material in the local market the project could not be completed and enhanced an amount of Rs.4,50,000 per 3-Bedroom Apartment due to price hike in the market. Again a newsletter has been issued by the DHA in December, 2008 for same hope that the project will be completed by 31-12-2009, but all in vain.
3. Mr.. Muhammad Iqbal Khan, learned counsel appearing on behalf of the petitioner, contended that the petitioner being a cancer patient, has met the expenses on his medicine and his entire earning money he has spent on the said flat with the hope that the DHA would hand over the said flat in his lifetime, but here the speed of construction reflects-that the petitioner will not get it in his lifetime. Learned counsel has placed on record some photographs of the project and contended that the project seems to be almost completed, but internally no electricity, gas and water conversancy is available in the said project and debris are available on the floor of each flat.
Learned counsel further contended that on the one hand DHA has been paying Rs.25,000 as penalty to the petitioner, but on the other hand they enhanced the cost price upto more than Rs.8,00,000 unilaterally which shows that the DHA has been paying Rs.25,000 per month, as penalty and charged more than that from the petitioner in the name of price hike of construction material in the market and still DHA does not seem to be in a mood to hand over the possession to the petitioner. Learned counsel for the petitioner further contended that the said project has been announced ground plus 14 floors but the DHA has built two more floors, which comes ground plus 16 floors, which can be a dangerous for human lives. Initially the DHA did not know that it could not be completed within time and the DHA will face fiscal hardship and DHA had built the foundation of the said project according to the ground plus 14 floors and two more floors are afterthought, which could not take weight of more two floors. According to the learned counsel, the petitioner with permission of the DHA took the loan from the Bank on interest to pay the price of the flat to the DHA.
It is an irony of the fate that despite of payment of registration money, 20% down payment and 10 instalments each of Rs.4,46,250 within stipulated period upto 7-4-2006 as evident from Statement of Accounts filed by DHA as Annexure. "A" with the parawise reply, the DHA instead of handing over the possession of the flat, imposed 12% penalty on the so-called self-imposed dues.
4. On 22-7-2010, Mr. Ch. Muhammad Rafique Rajourvi, learned counsel for the respondent No.1 pointed out, before this Court that the petitioner took the same issue before the honourable Supreme Court of Pakistan, in response thereto, the petitioner made a statement in writing dated 29-7-2010 in the instant petition that he does not want to press and pursue his application before the honourable Supreme Court of Pakistan against the respondents. Learned counsel for the DHA has contended that the project has not been completed in time for no fault of the DHA, as the construction material was not available in the local market required by the DHA for which they imported the same in a bulk quantity, which increased the cost of the project, as the DHA under the obligation to ensure that the construction material used was of a high quality to ensure safety of the allottees and the buildings. According to the learned counsel, the need of the two more floors was due to escalation price in the market of construction material, which the DHA does not want to shift the burden on its allottees so that DHA decided to raise two more floors to meet the expenses and price hike, which were built of course by adopting the rules and regulations of KBCA/DHA and' the same is not an unlawful act, as the petitioner has not been disturbed from his property rights.
Learned counsel further contended that almost allottees' have paid their entire dues and taken possession of their respective apartments. Learned counsel further contended that, the bona fide is apparent from the admitted fact that all the allottees were paid compensation of Rs.25,000 per month after due date of completion of project. The slow progress of construction of the project was due to nonpayment of monthly instalments by the petitioner at the end of year 2008. According to the learned counsel, at present 99% of the flats are occupied and the whole area is vigilantly being guarded and secured by the DHA.
5. We have heard the learned counsel for the parties and perused the material available on record with their able assistance.
6. Prima facie, it appears that the petitioner was successful contender of a 3-Bedroom Flat through balloting and consequent thereupon he took loan from Bank to pay the same as per schedule of the project. Though it is admitted position that the DHA is paying Rs.25,000 to' the petitioner as well as other allottees, but it is a commitment made in the year 2003. A flat in the sum of Rs.25,000 may have been occupied an rent in the year 2003 and according to the learned counsel for the DHA due to the price hike the cost of the project has been enhanced and the flats have been handed over to other allottees in the year 2009. Here the question arises that in the year 2009 whether a flat can be occupied in the sum of Rs.25,000 on rent?
7. It appears that the DHA has raised the price of the project before occupation by the allottees and only Rs.25,000 per month is being paid by the DHA to the petitioner and other allottees. The question as to whether the price hikes on the construction material and not on the rent, which was committed in the year 2003 by the DHA to be paid to the allottees. The DHA has unilaterally enhanced the cost of the project without taking into confidence of the allottees. The DHA should have enhanced also unilaterally the rent amount i.e. Rs.25,000, which was committed in the year 2003 by the DHA and how it is possible that the inflation is effected upon the construction material and not on the rent of properties. Simultaneously, the DHA has been paying Rs.25,000 per month after 2006 according to its commitment and get more than Rs.8,00,000 from the petitioner in lump sum.
8. It is an admitted position as apparent from the available record that the petitioner had paid entire agreed consideration within due date and balance 5 % was payable at the time of delivery of possession. On 22-2-2011 this Court directed the learned counsel for DHA/ respondent No.1 to file a copy of Agreement and other documents to examine whether additional cost could be charged by DHA. On 25-3-2011, at the time of hearing the counsel for the respondent No.1/DHA filed only photocopy of the documents containing terms and conditions imposed by DHA/respondent No.1 for allotment of subject apartment duly signed by the petitioner. We have carefully examined the said documents, but have not found any condition by which DHA/respondent No.1 could charge additional cost of the subject apartment from the petitioner.
9. In our society, if we see all around in Courts that maximum cases are being filed against the builders of Karachi on more or less same plea that the allottees have not been handed over their flats in time, which they booked in a hope with the plan that they would get their flats and will spend their rest of the lives in calm, but in the state of affairs of the builders, who take different pleas including alleged price hike, stay of the Court on their projects and other petty problems, they could not complete the project consequent thereupon the allottees suffer for no fault of theirs.
Here in this case, the DHA is the respondent, which is a statutory Authority, it is not expected that the DHA is using delaying tactics by adopting same tactics as adopted by unscrupulous Builders/Developers.
10. In the facts and circumstances of the case, petition is partly allowed to the extent that surcharge which is being imposed upon the petitioner by the DHA in respect of demand of extra money is not sustainable. The DHA cannot seek enhancement in the cost for no fault of the petitioner as it is admitted position that the petitioner had paid all the instalments within stipulated period and 5 % amount at the time of possession as mentioned in Annexure "A" with the Parawise Reply of the DHA. However, we dismiss this petition as regards the prayer clause "e" as the same cannot be allowed in the writ jurisdiction and the petitioner should avail remedy available under the law. The DHA is directed to hand over the possession of the apartment to the petitioner.