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Petitioner: Muhammad Tariq Qasmi and Others VS Respondent: Federation of Pakistan & ors
Court Name: Sindh High Court Judge(s): Agha Faisal, Abdul Rasool Memon Title: Muhammad Tariq Qasmi and Others vs Federation of Pakistan & ors Case No.: Constitutional Petition D-2110/2009 Date of Judgment:2018-07-16 Reported As: 2019 PLC (C.S.) 594, 2018 SHC 823 Result: Petition dismissed
Judgment Agha Faisal, J: By this common judgment we intend to decide 31 interconnected Constitution Petitions seeking determination of whether the occupancy of Government residential accommodation by the respective Petitioners is sanctioned under the law. The petitions under consideration may be classified into five broad categories. The first category is a collection of petitions whereby the Petitioners, being retirees or legal heirs of retirees, are in occupation of residential facilities belonging to Government of Pakistan and in respect whereof ejectment notices have been issued from time to time and yet the Petitioners remain in occupation, sustained by interim orders passed by this Court. The second cluster of petitions assail ejectment notices issued by the Government of Sindh to serving employees stationed at Karachi, prior to competent determination of whether the respective occupation was sustainable in law. The third category comprises of one petition which has been disposed of and in respect thereof a contempt application has been preferred by the Petitioner. The fourth category pertains to another singular petition wherein the Petitioner seeks the implementation of an allotment order of accommodation issued in his favour. The final category pertains to another solitary petition whereby a Show Cause Notice seeking to determine encroachment was served upon a serving officer and on the basis thereof the said petition was filed and interim orders were obtained preserving the possession of the Petitioner. 2. The first category comprises of C.Ps. Nos.D-21 10 of 2009, 2120 of 2011, 1479 of 2012, 889 of 2016, 4997 of 2016, 733 of 2017, 1171 of 2017, 1248 of 2017, 1664 of 2017, 1699 of 2018, 48 of 2018 and it may be pertinent to encapsulate the brief facts therein in addition to the arguments led by the respective learned counsel for the Petitioners in regard thereof. 3. In C.P. No.D-21 10 of 2009, it was submitted by the Petitioner , appearing in person, that he is a retired government servant and an allottee of property vide allotment letter dated 07.01.1982. It was contended that the Petitioner though retired from service was entitled to retention of the residential accommodation as the same was his inherent vested right. It was demonstrated from the record that the Petitioner had initiated civil litigation in order
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to substantiate his claim to the property , however , he was unsuccessful at each progressive stage and finally an order in revision was passed by this Court on 04.09.2009, in Civil Revision Application 75 of 2009, wherein the Petitioner s contentions were dismissed with the observation that the Petitioner may be permitted to remain in the property for another one month on humanitarian grounds. The present petition was filed to challenge the said impugned order in revision. The Petitione r was asked to point out any infirmities present in the impugned order in revision yet he was unable to do so and on the contrary stated that he placed reliance upon the arguments advanced by the learned counsel for the Petitioner in C.P. No.D-1479 of 2012 to justify his continued occupation of the property . 4. Mr. Naeem Suleman, learned counsel for the Petitioner in C.P. No.D- 2120 of 2011 submitted that an allotment order was issued in favour of the Petitioner on 21.05.1987 and that despite having retired from service the Petitioner was entitled for the said allotment to be converted into a lease in favour of the Petitioner . The learned counsel submitted that the allotment issued in favour of the Petitioner pertains to a property in Katchi Abadi area and that in similar circumstances leasehold rights have been granted in favour of housing societies that had been provided land in Katchi Abadi upon which construction was to be raised by their own means. Per learned counsel, it was settled law that in Katchi Abadi areas, a person in possession of the property is entitled to have the same regularized and of or leased in his favour . 5. Mr. Rizwan Ahmad Siddiqui, learned counsel for the Petitioners in C.P. No.D-1479 of 2012, submitted that the Petitioners were issued allotment letters in the year 2007. It was submitted that while the petitioners were in service at the time that the allotment orders were issued but despite having retired many years ago their occupation of the respective Government allotted accommodation subsists. Learned counsel submitted that the aforesaid allotment letters amounted to transfer of the ownership of the property to the Petitioners. It may be pertinent to reproduce the relevant content of one such allotment letter by way of an illustration: "Sub:- ALLOTMENT OF GOVERNMENT RESIDENCE IN TERMS OF THE Karachi ALLOCA TION RULES AND AS PROVIDED UNDER F.R. 45, S. R. 311, 312, 313, 314, 315, 316 AND 317 AND SUBSEQUENT AMENDMENTS MADE THERET O I have the honour to state the Quarter No.3 of 49-E, situated at Jehangir Road East, Karachi, is hereby allotted to you provisionally . This allotment does not entitle you to any lien on the residence but you will remain in occupation till further orders. The house is to be occupied within four days from the date of issue of this letter after handing over vacant possession of the Quarter No.4 of 80, Clayton Road to the Pak PWD Enquiry Office, Clayton Road, failing which the allotment will be treated as withdrawn. Rent and other charges shall commence to be assessed against your name from the date of occupation or from the fourth day of the issuance of this letter , whichever is earlier . Such demand of bills shall be realized from your monthly emoluments through your Department or the Audit Office on monthly basis . But it is in your interest to see that all bills are regularly realized and nothing falls in arrears, otherwise, you may face unpleasant situations and also dif ficulties while vacating the house on transfer of retirement etc." (Underline added for emphasis.) 6. It was next contended that by virtue of certificates issued by the Ministry of Housing and Works the rights of the Petitioners in the allotted property were further cemented. It may be pertinent to reproduce one of the certificates also as an illustration: "GOVERNMENT OF PAKISTAN MINISTRY OF HOUSING & WORKS ESTATE OFFICE - KARACHI "This is to certify that Mr. Iqrar Ahmed Siddique sonof Mukhtar Ahmed Siddique the occupant of Quarter No.183-F , Old Lalukhet measuring a liveable area of 676 Sq. Ft. in Jehangir Road (West) on the basis of longstanding occupation is eligible for ownership." Sd of - Date 1 1-09-2007 Estate Of ficer" 7. Learned counsel referred to a judgment of the honourable Supreme Court dated 15.02.1984 in the case of Pakistan Distressed Employoees Associa tion vs. The Islamic Republic of Pakistan etc. (CPSLA No.K-216 of 80) and drew our attention to the following passage:?
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"4. After carefully going through the file we feel that the matter has been dealt with by the Government, on administrative level, keeping in view the political and other exigencies and we are of the view that no vested right has been created in the Petitioner on the basis of the President's order dated 5.2.1972, to remain in occupation of the Government accommodation provided to them while in service. The Petitioner's counsel submitted that although land has been earmarked for construction of flats for the Petitioner, yet they are not being constructed due to paucity of funds. He urged that the Government may give land to the Petitioner and they would themselves build flats on it at their own expense, without bothering the Government. This plea can be urged before the Government which should consider it on merits. In view of the above discussion we do not consider this a fit case for interference by this Court. The petition is consequently dismissed." (Underline added for emphasis.) 8. It was submitted by the learned counsel that in furtherance of the aforesaid judgment the Ministry of Law and Parliamentary Affairs issued a Estate Office Memo dated 15.06.1984 and relied upon the following passage therefrom: "You accordingly requested to maintain STATUS QUO' on the question of ejectment concerned occupants with the directive and the Court Order until such time that the matter is brought to the notice of the President himself with relevant facts through the Secretary , Works Division and other appropriate chann els for necessary clarification in clear terms." 9. Learned counsel referred to further correspondence wherein it had been suggested that the ejectment of occupants of Government accommodation may be deferred or reconsidered on compassionate grounds. 10. Mr. Noor Muhammad Sahito, son of the Petitioner in C.P. No.D-889 of 2016 appeared in response to the receipt of Court notice by the Petitioner and submitted that the property had been allotted to his father on 21.03.1985. It was submitted that the Petitioner retired from service in the year 2008, however , remains in possession of the property till date and in justification of such occupation he relied upon and adopted the arguments put forth by the learned counsel for the Petitioner in C.P . No.D-1479 of 2012. 11. Mr. Muhammad Ajmal Awan, learned counsel for the Petitioner in C.P. No.D-4997 of 2016 submitted that the property has been allotted to the late father of the Petitioner on 31.01.1974. It was submitted that the father of the Petitioner had expired post retirement and also the mother of the Petitioner expired in the year 2008. It was submitted by the learned counsel that the Petitioner being one of the legal heirs of the deceased Government servant, to whom the property was allotted, was entitled to retain the subject property in perpetuity notwithstanding the fact that the same property had been allotted in favour of another and that the said allotment was sanctified vide an Order of a Division Bench of this Court passed in C.P . No.D-5154 of 2015. 12. Mr. Farooq Hashmat Abbasi, learned counsel for the Petitioner in C.P. No.D-733 of 2017 submitted that the property had been allotted to the Petitioner on 20.02.1982 and the subsisting occupation of the said property was justified in reliance upon and by adopting the arguments of the learned counsel for the Petitioner in C.P. No. D- 1479 of 2012. 13. The Petitioner appeared in person in C.P. No.D-1171 of 2017 and submitted that he retired as an employee of EOBI in March 2009. It was submitted that he remains in the property since 1987 and is entitled to remain therein on account of his inability to find alternate accommodation. 14. In C.P. No.D-1248 of 2017 no one appeared for and on behalf of the Petitioner despite the issuance of repeated notices and also pasting of the said notices upon the address of the Petitioner and also at the property , the subject matter of the petition. It was determined from the perusal of the record that the property in question was originally allotted to the father of the Petitioner and upon his death occupation of the said property remained with the mother of the Petitioner and now after the death of the parents the Petitioner is in occupation thereof. The Petitioner has not pleaded any grounds to substantiate her entitlement to or her retention of the said property which was supposedly allotted to her long deceased father . 15. Mr. Jawwad Haider Rizvi, appeared on behalf of the Petitioner in C.P. No.D-1 664 of 2017 and submitted that the Petitioner was allotted the property on 10.06.1971 and remains in possession thereof despite having retired on
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15.02.1997. In order to justify his occupation of the official accommodation he relied upon and adopted the arguments of the learned counsel for the Petitioner in C.P . No.D-1479 of 2012. 16. Mr. Hussain Bux Baloch, learned counsel for the Petitioner in C.P. No.D 48 of 2018 submitted that notwithstanding the fact that the Petitione r had retired from service back in 2016, the Petitioner continued to occupy the official accommodation as he is unable to acquire an alternate. No allotment order was placed before us and the learned counsel placed reliance to the arguments of the learned counsel for the Petitioner in C.P. No.D-1479 of 2012 in order to justify his continued occupation of the premises. 17. Mr. Rasheed A. Razvi, learned counsel for the Petitioner in C.P. No.D 1699 of 2018 submitted that the official accommodation was allotted to the deceased husband of the Petitioner. It was demonstrated that after the demise of the Petitioners husband she was permitted to remain in the said property until 15.12.2016 on humanitarian grounds, despite her entitlement as a widow having expired in 2012. It was next contended that the Petitioner being an employee of the Government of Sindh was entitled to the official accommodation belonging to the Government of Sindh and that it was just and proper that the property wherein she was residing, belonging to the Government of Pakistan, be swapped for a property belonging to the Government of Sindh. Per learned counsel, the request for initiation of the swap was initiated by the Provincial Government and that the same has not been acceded to till date. Learned counsel submitted that eviction of the Petitioner from the property would be in violation of Article 10A of the Constitution and Section 24A of the General Clauses Act. Learned counsel also raised an alternate plea that in the event that the Court was of the opinion that the Petitioner being employee of the Government of Sindh was not entitled to remain in occupation of the property of the Government of Pakistan then on humanitarian grounds the Petitioner may be allowed to continue living at the said property till June 2019, at which time the Petitioner shall stand retired. 18. In response to the arguments of the aforesaid Petitioner, Mr. Salman Talibuddin, learned Additional Attorney General for Pakistan, addressed the Court with respect to C.P. No.D-1699 of 2018. It was submitted that the matter of residential facilities belonging to the Federation was governed by the Accommodation Allocation Rules 2002, issued by the Government of Pakistan, Ministry of Housing and Works in exercise of powers conferred by subsection (1) of Section 25 of the Civil Servants Act, 1973 (LXXI of 1973), ("Rules "). It was demonstrated that Rule 15 of the aforesaid Rules deals with the retention of the accommodation belonging to the Government of Pakistan. It may be appropriate to reproduce the relevant Rule herein below: "15. Retention of Accommodation .- (1) In case of death of allottee.- (a) the family of the allottee shall be entitled to retain the accommodation under their occupation for a period not exceeding one year on payment of normal rent; and (b) his serving widow or serving legitimate children may be allotted the said accom modation provided he is eligible for the accommodation or becomes eligible for the said accommodation within one year of the event. In case the allottee expires within six months after retirement, his serving spouse or legitimate children may be considered for allotment provided all other conditions are met. Where the accommodation is of a class or category higher than his entitlement, he shall be allotted the first available accommodation in that class or category as the case may be, and shall not be dislodged and shall be charged normal rent till such time as the alternative accommodation of his entitlement has been made available to him. (Underline added for emphasis.) Provided that in no case the occupant shall be entitled to retain the accommodation of higher category for more than one year . (2) An allottee, on his retirement or expiry of contract period shall be entitled to retain the accommodation under his occupation for a period not exceeding six months, on payment of normal rent and this facility will be available to FGS once only . (3) An allottee who has resigned or is dismissed, removed, compulsorily retired from service may retain accommodation under his occupation for a period of two months. (4) An allottee who is.-?
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(a) transferred or sent on deputation to an out station eligible department, he shall be entitled to retain the accommodation till his posting back to the station of accommodation or till the availability of accommodation at the new station with the permission of Works Division provided he does not claim the accommodation or house rent allowance at his new place of posting and his Ministry shall take up the case with the Ministry of Housing and Works for this purpose; (b) transferred to an ineligible Federal Government department or organization at the same station may be allowed to retain the accommodation on normal rent for a period not exceeding five years from the date of his transfer or the date of his permanent absorption in the new department, whichever is earlier; (c) transferred to an autonomous organization at the same station may retain the accommodation under intimation to the Estate Office till such time as that organization provides him alternate accom modation or for a period of five years whichever is earlier . The total monthly house rent allowance payable to the allottee or his rental ceiling, whichever is more, will be payable into govt treasury by the organization; and (d) transferred to an autonomous organization at an out station may retain accommodation under intimation to the Estate Office for a period of six months or till such time as such organ ization provides him alternate accommodation(whichever is earlier) on payment of house rent allowance payable to the allottee by his organization or his rental ceiling whichever is higher . (5) A FGS may.- (a) retain accommodation for entire period of Government sponsored courses or training only and in case of self-financed training or studies may retain accommodation for a period of six months only; and (b) retain accommodation for a maximum period of upto one year during all kinds of leave. (6) An allottee or his family shall be served a notice of cancellation along with permission of retention of the house in case of retirement from service or resig nation etc., from the date of occurrence of the event. This shall be treated as final notice and no further notice shall be served upon him for vacation of the accommodation. " 19. It was submitted that the case of the Petitioner did not qualify under Rule 15(1)(a) or Rule 15(1)(b) and, therefore, the said Petitioner was in illegal occupation of the official accommodation. Learned Additional Attorney General demonstrated from the record that the documents relied upon by the Petitioner to substantiate her occupation of the property were in themselves discrepant as it was apparent that orders were issued by the Government of Sindh to confer rights in property admittedly belonging to the Government of Pakistan. Learned Additional Attorney General further submitted that swapping of the Premises is not permissible under the Rules and therefore such a request cannot be acceded to by the Federation and that the same has been duly intimated to the Petitioner vide correspondence available on the Court file. 20. Per learned Additional Attorney General, Article 10A afforded no protection to the Petitioner when it was in fact the Federation that remains deprived of its property by the conduct of the Petitioner . It was further contended that Section 24A of the General Clauses Act relates to exercise of discretionary powers vested by law in an officer and while no discretionary powers vested in the Provincial Government to confer an allotment of property belonging to Federation of Pakistan, the Federation had rightly refused to accede to the demand for swapping of premises as the same was not permissible under the Rules. 21. On the issue of the alternate prayer on humanitarian ground, it was submitted that while the Petitioner may be entitled to accommodation owned by her employer , being the Government of Sindh, but the property under the Petitioner s unlawful occupation was depriving the lawful allottee in respect of the same. It was submitted that even though the entitlement of the Petitioner to remain in the Property expired in 2012, her subsistence therein till date in itself is in misuse of the humanitarian consideration already extended thereto. 22. Learned D.A.G. appearing on behalf of the Federation in the remaining matters adopted the arguments of Mr. Salman Talibuddin and further demonstrated from the record that there was no right available to the Petitioners to remain in unlawful occupation of the respective properties. Learned D.A.G. also sought to rely upon the documentation submitted along with the Counter Affidavit filed in C.P. No.D-1479 of 2012 to support his contentions regarding the disentitlement of the Petitioners and submitted that the same arguments shall apply mutatis mutandis to the remaining petitions as well.?
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23. Mr. Ghulam Muhammad, advocate, learned counsel for Sindh Katchi Abidis Author ity, appeared and submitted that the said Department was not concerned with the present petitions as the property in question belong to the Federal Government. It was submitted that the Department of the Katchi Abadis had no right whatsoever to confer or withdraw any right with respect to the property belonging to the Federal Government in general and specifically denied the contentions of the learned counsel for the Petitioner in C.P. No.D 2120 of 2011 wherein it was urged that the Department of Katchi Abidis was conferring rights upon persons in possession of land. 24. It is appropriate to record that anothe r Divisional Bench of this Court was seized of an identical matter , being C.P. No. D-3433 of 2015, and the said petition was dismissed on 03.05.2018 while maintaining that the Petitioner had no subsisting right to the property under occupation and that the said petition was misconceived as it was apparent that the Petitioner had approached the Court with unclean hands to perpetuate his illegal possession of the property , subject matter of the petition. 25. In each of the petitions in the first category the Petitioners have been unable to demonstrate any right whereby their continued occupation of Government owned residential accommodation was tenable. The respective allotment orders permitted occupation of the respective properties while the occu pants were in service and upon terms and conditions therein contained. The present Petitioners were either retired from service or legal heirs of deceased persons retired from service. 26. In the first category of the petitions under consideration herein the Petitioners have been unable to substantiate any right by virtue whereof they remain in occupation of Government accommodation. The allotment orders and ancillary documentation referred to prima facie do not confer any rights upon the Petitioners save for those which are expressly stated therein and even those rights are no longer subsisting. Nothing has been placed on record to demonstrate that the rights allotted stood novated into any other form by any subsequent law or action, therefore, there is no justification to depart from the dictum enunciated by the earlier Divisio nal Bench of this Court in C.P. No.D-3433 of 2016. 27. The second category of the petitions filed herein comprises of C.P. Nos. D-1591 of 2016, 1108 of 2017, 1455 of 2017, 2341 of 2017, 2750 of 2017, 2890 of 2017, 2898 of 2017, 4865 of 2017, 7563 of 2017, 2086 of 2018, 4287 of 2018, 4333 of 2018, 4990 of 2018, 5004 of 2018, 5057 of 2018, 5107 of 2018 and 5108 of 2018. 28. It was submitted by the respective learned counsel for the Petitioners that the Petitioners therein are presently in service and also stationed in Karachi. It is contended that the allotments issued in favour of the respective Petitioners remain valid and that the Petitioners are being coerced into vacating their premises without being given any opportunity to be heard or even being informed of the reasons for their impending ejectment. 29. In order to demonstrate the ejectment notice being served upon the Petitioners it may be pertinent to reproduce the notice dated 14.06.2018 served upon the Petitioner in C.P . No.D-5108 of 2018: "SUBJECT : VACATION NOTICE IN COMPLIANCE OF CABINET DECISION TAKEN ON 07.1 1.2016 I am directed to refer to this department s letter of even number dated 23.05.2018 wherein you were advised to hand over the physical possession of the government premises to Estate Office, SGA&CD within fifteen (15) days in pursuance of decision by Supreme Court of Pakistan in Human Rights Case No.20746 of 2018 but you have not handed over the…
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