MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Pakistan Housing Authority Foundation ("P.H.A.F.") impugns the order dated 03.06.2020 passed by the President of Pakistan, whereby the petitioner's representation against the Wafaqi Mohtasib's revised findings dated 29.11.2019 was turned down. Vide revised findings dated 29.11.2019, the Wafaqi Mohtasib had turned down the petitioner's review petition against the original findings dated 23.08.2019.
2. The record shows that in the year 2012, the P.H.A.F. had launched a housing scheme for officers of federally constituted occupational groups at Kurri Road, Islamabad ("the Project"). The terms and conditions on which houses in the said Project could be allotted to eligible applicants were set out in a brochure issued by the P.H.A.F. The payment schedule in the brochure provided that 15% of the price of the house was to be deposited as down payment and the remaining 85% was payable in eight quarterly installments. After the deposit of the down payment, the applicant's name was to be included in the balloting for assigning unit number. In order to ensure that the installments are paid by the due dates, the brochure provided for penalty in the form of delayed payment charges ("DPC") at the rate of 2% per month of the installment amount. The payment schedule was subsequently revised through the P.H.A.F.'s letter dated 12.11.2015 puking 85% of the payment to be made through sixteen quarterly installments.
3. Respondent No.2/Bashir Ahmed is a retired BPS-20 officer from the Secretariat Group and was eligible to apply to the P.H.A.F. for the allotment of a house in the Project. His name was included in the balloting conducted on 19.03.2012 and he was allotted House No.580, Lane No.23, Category-III.
Letter dated 26.03.2012 to this effect was sent by the P.H.A.F. to respondent No.2. Vide letter dated 28.06.2012, the P.H.A.F. informed respondent No.2 that the first installment had not been fully paid.
Respondent No.2 was requested to make timely payments to save himself from late payment charges at the rate of 2% per month.
4. It is an admitted position that other than the first two installments, the remaining installments had been paid by respondent No.2 with substantial delays. A portion of the fourth installment and the remaining twelve installments were paid on one day i.e., 04.03.2019. For the delay in the payment of the installments, the P.H.A.F. had calculated an amount of Rs.2,605,798.93 as DPC payable by respondent No.2.
5. Construction work on the Project had been stopped between 28.11.2012 and 19.10.2014. Vide letter dated 20.08.2015, the P.H.A.F. informed respondent No.2 that construction work on the Project had resumed. Respondent No.2 was requested to clear the outstanding dues of Rs.2,511,964/- on or before 30.09.2015 failing which the DPC at the rate of 2% per month on all outstanding payments would be imposed. Vide letter dated 20.07.2018, the P.H.A.F. informed respondent No.2 that the grey structure on his house would be completed in 2018. Respondent No.2 was requested to clear the outstanding dues of Rs.3,511,122/-. This letter also shows that the matter regarding the DPC was to be considered in the meeting of the P.H.A.F.'s Board of Directors in the light of the directions issued by the Public Accounts Committee ("P.A.C.") and the recommendations made by the Wafaqi Mohtasib.
6. Vide letter dated 29.11.2018, the P.H.A.F. informed respondent No.2 that work on his house was almost complete. Furthermore, respondent No.2 was called upon to clear the outstanding dues amounting to Rs.3,211,122/-. Respondent No.2 was also warned that in case of non-payment of two consecutive installments, the allotment would be cancelled and restored only on clearance of all outstanding dues along with payment of 25% of the outstanding dues as a restoration charges.
7. The statement of account prepared by the P.H.A.F. also shows that partial payment of the fourth installment and all the other remaining installments were made on 04.03.2019. After applying penalty at the rate of 2% per month on the delay in paying the installments, the DPC calculated by the P.H.A.F. as payable by respondent No.2 came to Rs.2,605,798.93.
8. Vide sale deed dated 04.03.2018, respondent No.2 sold the house allotted to him by the P.H.A.F. to Agha Najeeb-ur-Rehman for a total sale consideration of Rs.1,04,00,000/- and in this regard, provisional approval was issued by the P.H.A.F. on 26.04.2019. At the time of the transfer, respondent No.2 paid Rs.2,605,799/- as DPC to the P. H. A. F.
9. The P.H.A.F.'s Board of Directors, in its 15th meeting held on 15.04.2014, had decided to waive off the DPC for the period during which the work on the Project remained suspended.
10. The office of the Auditor General of Pakistan, in its audit report for the year 2015-16 on the accounts of government controlled organizations, including the P.H.A.F., reported a loss of Rs.1,041.73 million due to the decision taken by the Board of Directors of the P.H.A.F. to waive off the DPC. The position taken in the said report was that the management of the P.H.A.F. had failed to protect the interest of the P.H.A.F. by not adhering to the terms and conditions of allotment of a housing unit.
11. In the meeting of the P.A.C. held on 11.04.2018, the matter regarding the Kurri Road Housing Project, Islamabad was discussed. The said Committee directed inter alia that "late payment penalties/fines imposed on the allottees shall be withdrawn and the late payments shall be in accordance with the percentage of development work undertaken under each category."
12. The P.H.A.F.'s Board of Directors, in its 33rd meeting held on 09.04.2019, decided to charge the DPC at the rate of 2% from the date of the commencement of actual work on the Project.
13. On 19.04.2019, respondent No.2 had submitted an application to the Secretary, Ministry of Housing and Works seeking refund of the excess amount paid by him to the P.H.A.F. as DPC.
14. Respondent No.2's request for the refund of the DPC was considered by the P.H.A.F.'s Board of Directors in its 34th meeting held on 26.06.2019. It was decided that since the allottees who had sold their houses had lost their rights of ownership over the same, the benefit of refund of the DPC could not be extended to them. Furthermore, it was decided that the DPC collected from such allottees would go to the Project account.
15. On 03.07.2019, respondent No.2 submitted a complaint to the Wafaqi Mohtasib seeking a direction to the P.H.A.F. to refund the DPC paid by him. The P.H.A.F.'s reply to the said complaint shows that out of the 588 allottees, 48.47% had sold their houses. In the said reply, it was also pleaded that the cost of the house allotted to respondent No.2 was Rs.4,720,972/- and he sold the same for Rs.10,400,000/-.
16. On 23.08.2019, the Wafaqi Mohtasib accepted respondent No.2's complaint and recommended that a clarification be sought from the National Assembly Secretariat about the applicability of the P.A.C.'s decision dated 11.04.2018.
17. On 27.09.2019, the P.H.A.F. preferred a review application against the said findings dated 23.08.2019. On 29.11.2019, the Wafaqi Mohtasib rejected the said review application and in his findings observed that if the P.H.A.F. had any doubt about the applicability of the P.A.C.'s decision dated 11.04.2018 to respondent No.2's case, a reference could have been made by the P.H.A.F. to the National Assembly Secretariat for a clarification. Thereafter on 26.12.2019, the P.H.A.F. filed a representation to the President of Pakistan against the said findings of the Wafaqi Mohtasib. On 03.06.2020, the President rejected the said representation. In his order dated 03.06.2020, the President observed that the P.H.A.F. had not challenged the original findings dated 23.08.2019 by preferring a representation within a period of 30 days as provided in Article 32 of the President's Order No.1 of 1983 read with Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013.
The P.H.A.F. has challenged the said concurrent findings of the Wafaqi Mohtasib and the President in the instant writ petition.
18. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the P.A.C. could not issue a direction to the P.H.A.F. to waive off the DPC from allottees for the period during which construction work on the Project was suspended; that respondent No.2 had only deposited three complete installments till 2019 out of sixteen installments that were payable; that the P.H.A.F. is a non-profit organization and does not receive any funds from the Government of Pakistan; that the P.H.A.F. is totally dependent on the payment from the allottees for the completion of its housing projects on time; that the DPC are imposed on allottees in order to ensure timely payments of installments; that in the 33rd meeting of the P.H.A.F.'s Board of Directors, it was decided inter alia that the DPC collected from those allottees who had sold their houses shall be blocked and be added to the Project account; that in the 34th meeting of the P.H.A.F.'s Board of Directors, respondent No.2's request for the refund of the DPC was considered and it was decided that the allottees who had sold their houses had lost their right of ownership over the same and therefore the DPC collected from them could not be refunded; that since respondent No.2 had sold his house on 04.03.2018 for more than double its cost price, he had lost the right to seek refund of the DPC; and that respondent No.2's complaint before the Wafaqi Mohtasib was not maintainable since contractual disputes could not be examined by the Wafaqi Mohtasib. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
19. On the other hand, learned counsel for respondent No.2 submitted that even though the P.A.C., in its meeting dated 11.04.2018, had directed that the DPC imposed on the allottees should be withdrawn and payments shall be made in accordance with the percentage of development work undertaken under each category; that respondent No.2 was in fact seeking implementation of the decision taken by the P.H.A.F.'s Board of Directors in the 15th meeting dated 15.04.2014 that the DPC would be waived from the date of the suspension till the resumption of work on the Project; that respondent No.2 was also seeking implementation of the P.H.A.F.'s Board of Directors in its 33rd meeting dated 09.04.2019 that the DPC at the rate of 2% from the date of commencement of actual work on the Project shall be charged; that respondent No.2 had paid the DPC amounting to Rs.2,605,799/- on 26.04.2019 since he had sold his house to Agha Najeeb-ur-Rehman through sale deed dated 04.03.2018; that respondent No.2 was justified in not making payment of installments during the period when the work on the Project was suspended; that the retention of the DPC for the period during which the work was suspended amounts to mal-administration; and that the decision not to charge the DPC from those allottees who had not sold their houses and to charge it from those who had sold their houses is discriminatory. Learned counsel for respondent No.2 prayed for the writ petition to be dismissed.
20. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 17 above and need not be recapitulated.
21. The dispute between respondent No.2 and the P.H.A.F. is whether the former was liable to pay the DPC for the period during which the construction work on the Project remained suspended, i.e., between 28.11.2012 and 19.10.2014.
22. The P.H.A.F.'s Board of Directors, in its 15th meeting held on 15.04.2014, had decided to waive off the DPC from the date of suspension of work till its resumption. Additionally, the P.H.A.F's Board of Directors, in its 33rd meeting held on 09.04.2019, decided that the DPC at the rate of 2% would be charged from the date of commencement of actual work on the Project. Respondent No.2 wanted the benefit under the said two decisions of the P.H.A.F.'s Board of Directors and therefore he submitted an application dated 19.04.2019 for the refund of Rs.2,605,799/- which had been paid by him as DPC at the time of the transfer of his house on 04.03.2018 to Agha Najeeb-ur-Rehman in the records of the P.H.A.F.
23. Although the P.A.C., in its meeting dated 11.04.2018, had directed that the DPC imposed on the allottees shall be withdrawn and the late payments shall be in accordance with the percentage of the development work undertaken under each category but assuming that the said direction had not been issued by the P.A.C. or that the said direction was not binding on the P.H.A.F., there was nevertheless decisions by the P.H.A.F.'s Board of Directors that the DPC during the period when the construction work was suspended would not be charged. The P.H.A.F.'s Board of Directors denied benefits under its earlier decision dated 15.04.2014 and 09.04.2019 on the ground that respondent No.2 had sold his house on 04.03.2018. It ought to be borne in mind that the P.A.C. had not interfered with the P.H.A.F.'s Board of Directors decision that the DPC during the period when the construction work was suspended would not be charged.
24. The P.H.A.F.'s Board of Directors, in its 34th meeting held on 26.06.2019, considered respondent No.2's application for the refund of the DPC. The minutes of this meeting show that a reference was made to the following decision taken by the P.H.A.F.'s Board of Directors in its 33rd meeting held on 09.04.2019: "Income that's interest earned and Delayed Payment Charges (DPC) on the installments of allottees as per revised payment schedule from the date of commencement of actual work on the project would go to the project account. Since there was division of opinion on the fate of DPC, therefore, the DPC collected from the allottees who have sold their housing units shall be blocked and shall not be added to the project account unless decided by BoD."
25. After referring to the said decision, the P.H.A.F.'s Board of Directors, in its 34th meeting held on 26.06.2019, decided that the allottees who had sold their houses had lost the right of ownership of their houses, therefore the DPC collected against their houses cannot be extended to them.
Furthermore, it was decided that the DPC would also go to the Project account. What I understand of the said decision is that the concession of not charging the DPC for the period during which the work remained suspended would not be extended to those allottees who had sold their houses. In the case at hand, the DPC amounting to Rs.2,605,799/- had been paid by respondent No.2 at the rate of 2% per month of the outstanding payments for the period which also included the period when the works were suspended. Indeed the DPC would be applied to respondent No.2 on the delay in the payment of the installments with effect from the date when the work actually commenced i.e., 20.10.2014. What this Court needs to determine is whether the decision taken by the P.H.A.F.'s Board of Directors, in its 34th meeting to charge the DPC (for the period during which the work on the Project was suspended), from an allottee who had sold his/her house is reasonable. In the case at hand, respondent No.2 had paid the DPC amounting to Rs.2,605,799/- on 26.04.2019 when he was still the owner of the house allotted to him. The decision of the P.H.A.F.'s Board of Directors not to charge the DPC from allottees for the period during which the work remained suspended have neither been recalled at any material stage nor have they been diluted by the decision taken by the P.A.C. on 11.04.2018. To deprive an allottee from the refund of the DPC paid for the period during which work remained suspended is, in my view, is irrational and discriminate. The P.H.A.F. placed no restriction on an allottee to sell the house allotted to him. purchaser of a house steps into the shoes of the allottee/seller and is entitled to all these privileges/concessions and is subject to all those restrictions/liabilities that the original allottee is.
The classification drawn between the allottees who had sold their houses and those that had not is neither reasonable nor based on intelligible differentia. This classification has no rational nexus to the object i.e., whether an allottee is exempt from the payment of the DPC for the period during which the work on the Project remained suspended. It is not disputed that an allottee who had not sold his house would be exempt from the payment of the DPC for the period during which the work remained suspended, and if such an allottee had paid the DPC for such period, he would be entitled to the refund or adjustment of this amount.
26. As regards the contention of the learned counsel for the petitioner that the Wafaqi Mohtasib had no jurisdiction to give findings with respect to a contract executed between the complainant and the agency against which the complaint is made, suffice it to say that in the case of C.D.A. v.
Zahid lqbal (PLD 2004 SC 99), the Hon'ble Supreme Court, after making reference to Article 199 of President Order No.1 of 1983, held in clear terms that "all other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute."
27. In view of the above, I do not find any merit in this petition which is accordingly dismissed with no order as to costs.