' UMAR ATA BANDIAL, C.J.---The petitioner was allotted House No, 81-Block-A measuring 1-kanal on 22-3-2010 for a price of Rs,5.823 million. The demand notice was issued to the petitioner on 27-3- 2010 for payment of the price. The default in payment by the petitioner resulted in final show-cause notice dated 7-2-2011 which was extended for one month for payment up to 7-3-2011. Upon petitioner's failure to make payment the petitioner's allotment was cancelled on 20-5-2011. On 12-1- 2012 the same house was allotted to another member of the Foundation, namely, Muhammad Ashraf Ranjha on payment of full price. He thereafter transferred the said house to yet another member of the Foundation, namely, Abdul Razzaq, respondent No,5 on 2-3-2012 under a registered sale-deed dated 17-4-2012. Presently, there are two contenders before this Court for the same property. Learned counsel for the respondent-Foundation submits that the cancellation of the petitioner's allotment was made in accordance with applicable rules of the Foundation and therefore the same cannot be faulted. In other similar cases this Court has granted relief to defaulting civil servants on payment of additional charges representing the cost of funds. Learned counsel for the petitioner therefore prays that the same property may be given to the petitioner on the lines that relief has been granted to other similarly placed petitioners.
2. The relief granted to other defaulting allottees is in the cases where the allotted property has not been re-allotted to any other member. Accordingly, the facts of the present case are different. Be that as it may, the eligibility and entitlement of the petitioner to be given a residential accommodation upon allotment at a subsidized rate still survives. At best the petitioner can be faulted for not making the requisite payment on time for which she is willing to deposit additional charges representing cost of funds/mark-up. Therefore, it is ordered that the respondent- Foundation shall upon payment by the petitioner of the price of the house available for allotment, place the petitioner's name in queue of senior allottees so that the petitioner may be provided a house within 6 to 8 months.
3. Insofar as the entitlement of the respondent No,5 to retain the house is concerned, an objection has been raised by the learned counsel for the petitioner that the re-allotment of the said house in haste on 12-1-2012 to the respondent No,5 was violative of the conditions laid down in the allotment letter and also the terms of Rule 22(a) of the Punjab Government Servants Housing Foundation Rules, 2005 ("Rules"). That rule provides as follows:--
22. Conditions of allocation.-- Allocation of a residential unit in favour of a member shall be made subject to the following conditions:-
(a) the member shall not alienate the allocated residential unit within one year of the delivery of possession.
4. Since the house in question was sold by the second allottee within three months of the allotment in his favour, the learned counsel for the petitioner claims that second allotment is illegal.
Consequently, the house is available for allotment and in this respect the petitioner should have prior right.
5. Learned counsel for the respondent-Foundation and the respondent No,5 have brought to the notice of the Court a notification dated 1-10-2010 by the Provincial Government issued in exercise of the power conferred under section 21 of the Punjab Government Servants Housing Foundation Act, 2004. By the said notification an amendment is made to the rule 22(a) ibid by the insertion of a provision to the following effect:--- "Provided that it shall not apply in case of first sale/transfer of the allocated residential unit to a serving/retired Government servant(Provincial/Federal) irrespective of his membership with the Foundation."
6. As a result, it is contended that the transfer in favour of the respondent No,5, being a first transferee made by the second allottee of the said house is valid for falling within the terms of the exemption granted in the above said proviso.
7. In the present case, third party rights have been created in relation to the house in question.
These rights have protection of a valid notification issued by the Provincial Government. There is no B unconscionable dealing attributed in this case to second allottee or the respondent No,5.
Consequently, the Court does not have a valid reason to interfere with the legal effect of the transfer made in favour of the respondent No,5.
8. However, it is observed that the notification although in existence for the last three years have not been incorporated in the typed out/printed version of the Rules provided to the Court. It appears that for the purposes of informing the ordinary members/allottee in the aforementioned Rules, like the petitioner, the Rules in original form are shown but where Foundation is so inclined amendment is brought out to facilitate the persons who may be favoured/accommodated.
Secondly, it is observed that the aforesaid proviso actually encourages allottees of houses to sell their houses even before taking possession thereof at a cash premium available from real estate market. The respondent-Foundation is rendering service at a subsidized price to retired government servants by guaranteeing them accommodation in their old age, however, as a result of the said proviso speculators have entered into the affairs of the Foundation whereby the conduct of the Foundation is affected by commercial considerations. Since the validity of the notification is not directly challenged in these proceedings, therefore, the Court is not inclined to strike it down. However, it is observed that the Provincial Government shall look into the commercial effect of the proviso that has been added and the incentive that have been given to retired government servants to sell their allotted houses at a profit which have been constructed with public money. To the mind of this Court such an opportunity to the allottees is transferring good public money into speculative ventures for cash ambitious retiring government servants. The Provincial Government should accordingly review the effect of proviso to Rule 22(a) ibid.
9. Petition disposed of.