This judgment shall decide Writ Petition No. 1058 of 1993, Writ Petition No.1210 of 1999, Writ Petition No.2469 of 1999, Writ Petition No.1374 of 2000, Writ Petition No.1375 of 2000, Writ Petition No.2324 of 1999, Writ Petition No.Ttu.5 of 2000 and Writ Petition No.2284 of 2000, as common question of law and facts are involved in all these petitions and were ordered to be heard together.
2. All the petitioners in these cases had availed of finance facility provided by the House Building Finance Corporation (hereinafter referred to be as "respondent"). Pursuant to the recommendation made by the Council of Islamic Ideology interest was abolished on the loan advanced by the respondent and it was suggested that instead of advancing loans on the basis of interest, the Corporation should entertain partnership agreement with its clients on the basis of joint ownership of the house to be constructed with the money advanced and the clients being liable to pay rent to the respondent for use of its share in the said house/property. Simultaneously, the clients were to keep on purchasing the different units of the share of the respondent and in this manner, the principal amount invested by the respondent will be gradually restored to it in the form of the price of its share in the said joint property. The suggestions made by the said Council were enacted in a statutory form by issuing an amending Ordinance in the year 1979. The Scheme is termed as "diminishing partnership scheme".
3. The grievance being made out in all these cases is that the Corporation undid the said statutory enactment by passing a Resolution on 31-7-1989.
4. Learned counsel appearing for the petitioners in these cases argues that the matter was taken to the learned Federal Shariat Court and vide judgment, dated 14-11-1991 (reported as PLD 1992 FSC 501) some provisions including section 24 of the House Building Finance Corporation Act 1952, were declared repugnant to the Injunctions of Islam. The matter was further agitated before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case of House Building Finance Corporation v. Raja Muhammad Sharif and 4 others (PLD 2000 SC 760). The Shariat Appellate Bench deprecated the said act of the respondent by nullifying several statutory enactment by a Resolution passed by its Board of Directors and further directives were issued in the manner in which the relationship between the respondent and its clients are to be governed and dealt with.
According to the learned counsel, the respondents instead of adhering to the said Scheme and the directives of the Shariat Appellate Bench are going ahead with demanding and recovering interest in the form of fixed return from the petitioners.
5. Learned counsel for the respondent on the other hand informs that in pursuant to command of the Shariat Appellate Bench, the requisite amendments have been made in the House Building Finance Corporation Act. 1952, by promulgating House Building Finance Corporation (Amendment)
Ordinance, 2001 (Ordinance LXV of 2001). Learned counsel, however, insists that the provisions of this Ordinance shall take effect from the date stated by the Shariat Appellate Bench in the case of House Building Finance Corporation v. Raja Muhammad Sharif and 4 others i.e. 30-6-2000 and the petitioners cannot get any benefit of the said law.
6. Since the point being pressed by the learned counsel for the petitioner already stand resolved in their favour by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the aforesaid judgment and the same stands complied with, therefore, I do not feel necessity to delve further in the said contention. I find that section 24 of the 1iouse Building Finance Corporation Act, 1952, had been suitably mended to make the amending Act in accord with the directives contained in the judgment cited supra.
7. The contention of the learned counsel for the respondent is based on section 24(20) as substituted by the Ordinance LXV of 2001. The said subsection (20) as printed in the Gazette of Pakistan, Extraordinary, dated 23-11-2001 reads as follows:-- "(20) Loans made before the first day of July, 1979, shall become due and payable alongwith accruals as on the last day of June, 2000, and all borrowers shall within three months from the commencement of the House Building Finance Corporation (Amendment) Ordinance, 2001, pay their entire obligations and investment made after the 30th of June, 1979, shall, unless the Federal Government otherwise directs, continue to be governed by the terms and conditions on which they were made. "
8. Subsection (20) as it existed when it was considered by the learned Federal Shariat Court and the Shariat Appellate Bench reads as follows:--- "Loans made before the first of July, 1979 shall unless the Federal Government otherwise directs, continue to be governed by the terms and conditions on which they had been advanced."
9. Before the Federal Shariat Court, it was stated by the learned Standing Counsel for the Federation under the instructions at the bar that the Federal Government does not support the said subsection and it was accordingly declared repugnant to the Injunctions of Islam. Before the Shariat Appellate Bench the position taken by the learned counsel for the respondent was that the learned Standing Counsel could not have conceded the said matter in absence of the counsel for the respondent and without specific instructions from it. It was further represented before the Shariat Appellate Bench that this section relates to the transactions which are mostly past and closed. The official of the respondent further stated that in thousand cases compound interest has already been forgiven. The Shariat Appellate Bench disposed of the matter by observing that a date is being fixed when the decision shall take effect and meanwhile the Corporation should settle the past matters. However, the provision of interest was declared certainly to be repugnant to the Injunctions of Islam.
10. In my humble opinion, sub--section (20) of section 24 is to be read accordingly. So far as the contention of the learned counsel that the benefits will be available on the date fixed i.e. 30-6-2000 by the Shariat Appellate Bench in the said judgment is concerned, the said enactment made pursuant thereto itself lays down the cut out date (subject to my observation made above) for the application of the said "diminishing partnership scheme". This being so, nothing turn on the said contention of the learned counsel.
11. For the reasons stated above, all these writ petitions are allowed. The respondent is directed to work out the rental payable by the petitioners and the purchase instalments in the manner directed by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan as enacted in the Ordinance LXV of 2001. Thereafter, the petitioners shall be intimated by means of notices containing the said particulars. This exercise shall be undertakes within two months from the date of .This judgment the petitioners shall then pay the amount so calculated within three months of the receipt of notices, failing which the respondent Corporation shall be at liberty to proceed for the recovery of the amount so calculated from the petitioners and to adopt such process as is admissible under the law. There is no order as to costs.
Q.M.H./M.A.K./A-635/L