2011 PLP 10 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J

The petitioner herein has asked for issuance of an appropriate writ by setting aside the impugned letters dated 20-1-2006 and 31-1-2006 as after allotment of plot/flat to petitioner by Pakistan Housing Authority (P.H.A.), petitioner has got vested rights in the property. Subsequent selling of the project to respondents without notice of the petitioner is illegal, unlawful, without lawful authority and jurisdiction. The respondents are also bound to accept and admit the vested interest of the petitioner in the allotted plot, for which petitioner as per agreement had deposited the requisite amount. The acts of respondents being illegal, unlawful, arbitrary, void ab initio as the same were passed behind the back of the petitioner require to be struck down.

2. Learned counsel for the petitioner submitted that the petitioner was a successful allottee of the flat/plot in Pakistan Housing Authority (P.H.A.) located in Nasapa Payan Charsadda Road, Peshawar and she also deposited an amount of Rs.1,60,

000. Thereafter the respondents (P.H.A.) vide letter dated 15-6-2001 issued a further payment schedule to the petitioner and also informed the petitioner regarding loan facility vide their letter dated 13-7-2001. The P.H.A., respondents Nos.2 and 3, all of a sudden issued a letter dated 12-9-2005 to get the refund of the already deposited amount with the PHA regarding the allotment of plot/flat. Such an act of the respondents is against law and without jurisdiction.

3. As against that, the learned counsel representing respondents Nos. 2 and 3 (P.H.A.), at the very outset, submitted that the writ petition is not maintainable being a contractual liability and alternate remedies were available to the petitioner. However, the respondents (P.H.A.) as a matter of honouring its commitments, made certain proposals to the petitioner to accept another plot/apartment in other schemes/projects of the P.H.A. or to accept the refund of the already paid amount. Besides, the P.H.A. also asked the Provincial Government to spare block "C" from the bulk sale of the project just to comply with the commitments of the P.H.A. allottees and finally again expressed the offer of above proposals.

4. The learned A.A.-G. on behalf of the Provincial Government also questioned the maintainability of instant writ petition and further submitted that because of a bulk sale of the entire project, it was not possible for the Provincial Government to spare some portions of plots/apartments.

5. We have heard the learned counsel for the parties and learned A.A.-G. and have gone through the entire record available on the file with their valuable assistance. The same would reveal that allotment of plot/apartment and deposits made by the petitioner towards such allotment were admitted by the P.H.A. and were never denied. The record of the case would further reveal that the P.H.A. being a party to the agreement with the petitioner failed to complete the offered project because of poor response by the general public to purchase the plots/ apartments, decided to sell the entire project to Provincial Government as the land of the project belonged to Provincial Government. The correspondence between the two sets of respondents would further reveal that the P.H.A. asked the Provincial Government to spare a block from the bulk sale for the allottees of the plots/apartments by the P.H.A. and the same was refused by the other on the plea that the handing over possession of the project was to be made by the former without any encumbrance and further it was an agreement of sale of entire project. The efforts of the respondents (P.H.A.) would further reflect that certain offers of a substitute plot/apartment in other schemes/projects of the P.H.A. were also made. In response whereof many of the allottees agreed to the same and some of the said allottees opted for refund of their amounts deposited by them.

6. The case of the petitioner is very obvious and her rights of allotment and deposits of amount were admitted and in recognition of the same, the petitioner was offered many options. But the most important and crucial aspect of the case is the question: whether the petitioner could enforce her such right through instant constitutional petition and whether this Court in exercise of its constitutional jurisdiction can extend its authority to safeguard the rights of the petitioner. The answer to both the questions in our view would be in negative. The reason for such refusal is again obvious. Such a right in exercise of constitutional remedy can only be claimed when the aggrieved person has no other alternate remedy to ask for the enforcement of his such right. The petitioner being allottee of the plot/apartment from the P.H.A. could have many other available remedies like specific performance, damages etc. Allotment of a substitute plot/apartment as offered by the P.H.A., was also available to her. Yet another aspect which too cannot be overlooked while deciding instant writ petition, whether this Court in' exercise of its writ jurisdiction can enter into enforcement of a contractual liability. Again answer to the same would be in negative as this Court cannot entertain a petition to enforce civil liability arising out of breach of contract and that too when such liability involves different questions of facts to be probed into. The case-law Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others, (1988 SCMR 2268) relied upon by the petitioner would also be not helpful to her as our view is in conformity in substance with the view expressed by the august Court. The relief claimed by the petitioner is nothing less than the enforcement, fulfilment of contract/agreement arrived at with P.H.A. which in our view is out of our domain while a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan is under consideration.

7. What has been discussed above makes us clear in our mind to hold that the petitioner had alternate remedies available to her, recourse to which could have been made or could be made by the petitioner and the petitioner cannot ask to enforce the civil contractual liability in the circumstances of the case. Hence, instant petition being meritless is dismissed as such. Needless to say that the petitioner in the circumstances would be entitled to ask for the available remedies subject to all legal and valid objections by the other side. H.B.T./350/P Petition dismissed.