1. ' FAISAL ARAB, J.---Mirza Abdul Khaliq Baig was a civil servant. He was serving as Deputy Secretary in Ministry of Defence. On the basis of such service, he applied for Category "A" Membership with the then Pakistan Defence Officers Cooperative Housing Society Limited and he was accordingly granted such Membership. In the year 1972, Mirza Abdul Khaliq Baig applied for a Commercial Plot and as per the Rules after holding balloting lie was allotted Plot No,45-C, admeasuring 200 square yards in Bukhari Commercial Lane 7, Phase-VII, Defence Officers Cooperative Housing Society Ltd., now Defence Housing Authority. Mirza Abdul Khaliq Baig made requisite payments and became owner of said plot. In the year 1993 Mirza Abdul Khaliq Baig expired leaving behind a widow, son and a daughter. In the year 1996 the heirs of Mirza Abdul Khaliq Baig applied to the Defence Housing Authority for mutation of the said plot in their names. After receipt of such application, Defence Housing Authority informed the heirs vide letter dated 2nd October, 1996 that as per bye-laws of the Authority; Mirza Abdul Khaliq Baig was not eligible for allotment of plot and, therefore the Executive Board ordered cancellation of the plot in its meeting that was held on 14-9-1996. The letter dated 2nd October, 1996 is reproduced as under:-- ' Capt. (Retd) Farhan Baig, sio late Mr. M.A.M.Baig, 225-B, Sarwar Road, Lahore Cantt.
2. ' Subject: CANCELLATION OF COMMERCIAL PLOT NO. 45-C BOKHARI COMM. LANE-7, PHASE VII MEASURING 200 SQ. YDS.
3. ' Dear Sir.
4. ' Reference is made to your letter No,DS/551/WL-2471 dated 4th August, 1996.
5. ' This is to inform you that your father late Mr. M.A. Beg was not paid out of Defence Service Estimate and as per Bye-laws he was not eligible for allotment of plot. The Executive Board has approved the cancellation of the subject plot in the Executive Board Meeting No, 5/96 held on 14th September 1996."
6. (Sd.) Brig (Retd)
7. Muhammad Younus Chaudhry)
8. Secretary"
9. ' Thereafter correspondence was exchanged between the parties and finally the heirs of Mirza Abdul Khaliq Baig filed a suit challenging the cancellation of the plot in question. The suit was decreed. The trial Court held that the deceased was entitled for the membership and, therefore, the cancellation of allotment was not lawful. The appellant filed appeal which was dismissed vide judgment dated 30-8-2009. Hence this second Appeal against the concurrent findings of the Courts below.
10. ' Learned counsel for the appellant contended that under the. Provisos (i) of (h) of Clause 17 of the Presidential Order No,7 of 1980, all allotments and transfers of plots whether residential, commercial or otherwise made by the Society before its dissolution shall be deemed allotment and transfer made by the Authority provided the Executive Board of the Authority may cancel such allotments which were made or issued in contravention of the bye- laws of the Society or the Resolution of the Managing Committee of the Society. He, further contended that when the Executive Board found that the deceased was not entitled to the membership, his plot was rightly cancelled. In support of his contention reliance was placed on 2005 PLD Karachi 188, Mustafa Lakhani v. Pakistan Defence Housing Society Karachi (2008 SCM R 611) and Muhammad Iqbal v. Federation of Pakistan (2009 M LD 810).
11. ' Learned counsel for the respondents, who are heirs of Mirza Abdul Khaliq Baig, contended that the plot was allotted to the deceased in the year 1972 and it was only in the year 1996 i.e, after more than 23 years when the heirs of Mirza Abdul Khaliq Baig applied for mutation of the said plot, the allotment was cancelled and that too without any prior notice. He referred to the Application Form that was submitted by the deceased for allotment of plot, in which the deceased had shown himself to be serving as Deputy Secretary, Ministry of Defence and at the back of the said Form it was certified by the Assistant Secretary, Ministry of Defence that the particulars given in the Application Form are correct. In support of his contentions, learned counsel for the respondent relied upon 2006 SCM R 178, wherein the facts were that allotment was made in favour of a Member duly enrolled with the Authority. At the time of actual allotment the allottee was no longer working in the Military Account Service and was posted by the Federal Government to some other position but his membership remained intact and this was considered to be hardly a ground for cancellation of allotment. It was held that valuable right accrued in favour of the allottee as he did not cease to be the member of the Society and after making full payment, the allotment attained finality and became past and closed transaction which cannot be re-opened on imaginary consideration that at the time of allotment he was not in physical service in the Military Account Service and was not receiving emolument from Defence Budget System. The Supreme Court held that right accrued in favour of such a person cannot be destroyed by subsequent developments.
12. ' The appellant's letter dated 2nd October, 1996 reproduced above, shows that it was in response to the letter of the heirs of Mirza Abdul Khaliq Baig dated 4th August, 1996, seeking mutation of the plot in their names. Thus it appears that prior to seeking mutation no notice for cancellation to the heirs of the deceased was issued by the appellant at any stage. For 23 long years, the appellant did not question the eligibility of the deceased for becoming a Member of the Society or for allotment of the plot in question. On the basis of service with Ministry of Defence in the capacity of Deputy Secretary that the deceased was made a member of the Society in the year 1963 and in the year 1972 he applied for allotment of a commercial plot which after balloting was duly allotted to him. At no stage prior to 2nd October, 1996 the membership of the deceased was questioned by the Authority or the erstwhile Society.
13. ' In the case of Mustafa Lakhani (supra) v. Pakistan Defence Housing Society Karachi (2008 SCM R 611) (supra) it was held by the Hon'ble Supreme Court that mere payment of price and execution of a lease not supported by any approval of the Managing Committee of the Authority does not make the allotment valid. Hence it was held that allotment was in contravention of the bye-laws of the Society and, therefore, illegal, void ab into. In the present case, it is not the case of the appellant that there was no approval of the Managing Committee. On the contrary the approval of allotment was cancelled on the ground that the deceased was not being paid from the Defence Service Estimate. The referred case, therefore, has no application to the present case. In the case of Muhammad Iqbal (supra) the allotment of the plot was cancelled on the- ground of misrepresentation but in the present case the witness of the appellant has himself admitted in his cross-examination that the Application Form was verified by the Assistant Secretary, Ministry of Defence, therefore, there was no question of any misrepresentation.
14. ' The appellant examined one witness i.e, Moeenuddin, who was at that time serving with the appellant in Land and Town Planning Department and was duly authorized to give evidence in the matter. He deposed that as per Rules of the Society at the time of allotment there was no condition precedent that plots cannot be allotted to those who have not been paid from the Defence Service Estimate. He also deposed that he was not aware about the decision of the Board (with regard to the cancellation of the plot). This witness also admitted that after the deceased applied for membership, his credentials mentioned in the application form were scrutinized and verified. It was also admittedly by him that the Application Form submitted by the deceased was verified by Assistant Secretary, Ministry of Defence and was allotted a residential plot. It was also admitted that from the date of allotment of the plot in question i.e, 4-12-1973 and till death of the deceased in 1993, no showcause notice for Cancellation was sent to him.
15. ' In view of statement of the appellant's own witness it is clear that the deceased was made a member of the society and was allotted a residential plot in "Category-A" and then in 1973 he sought allotment of a Commercial Plot which was allowed after fulfilling all the formalities and without prior notice, the same was cancelled at the stage when his heirs sought mutation of the same in their names. In view of the above position, this Court finds no justification to interfere in the concurrent findings of the Courts below. Therefore, vide short order dated 27-1-2010 the appeal was dismissed and these are the reasons for the same.