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Petitioner: MUHAMMAD RIAZ AWAN VS Respondent: THE CAPITAL DEVELOPMENT AUTHORITY, ISLAMABADHonorable Justice Muhammad Akhtar ShabbirJavaid Saleem Shorish,Malik Muhammad Nawaz
2006 P L C (C
2006 P L C (C.S.) 153
[Lahore High Court]
Before Muhammad Akhtar Shabbir, J
MUHAMMAD RIAZ AWAN
Versus
THE CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and 6 others
Writ Petition No.999 of 2004, heard on 29th June, 2005.
(a) Accommodation Allocation Rules, 2002---
----Rr.2(b), 7, 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of accommodation--Dispossession of allottee---Petitioner being Government servant, had called in question, the action of the Authority taking illegal forcible possession of flat/house duly allotted to him---Allotment letter issued by Joint Estate Officer in favour of petitioner was available on file---Ownership of the Authority itself was under clouds as civil suit filed by another person against the Authority was subjudice before Civil Court---Premises in question having been allotted to petitioner by Estate Department under Accommodation Allocation Rules, 2002, Authority, if claimed ownership over Premises in dispute, could protest against said allotment, but no letter of protest/objection or request was written by Authority to concerned, department in that behalf---Authority had not issued any notice to petitioner who was in lawful possession of said premises, to vacate same---Action of Authority taking possession of premises in dispute, was coram non judice which had shown mala fides on the part of Authority---Authority, without getting clearance from Court of competent jurisdiction, could not have acted against petitioner---Authority had proceeded on wrong track and had taken law in its hands by getting possession of flat from petitioner which action could not be maintained---Action of Authority taking forcible possession of flat in dispute in occupation of petitioner, was declared illegal, without lawful authority, mala fide and of no legal effect, by High Court in exercise of its Constitutional jurisdiction---Petitioner could enter into said premises and continue his residence.
(b) Mala fides---
----Action would be said to be suffering from mala fides on facts, if it was taken due to some personal grudge, animosity or for some personal benefit---State of mind of the person taking action, was of great importance in determining such facts.
(c) Malice---
----Action would be said to be suffering from "malice-in-law", if Authority taking action was not competent to do so or had acted beyond its powers or in violation of law applicable, even though it could have acted `bona fide' and without ill-will---Person, who inflicted injury upon another person in contravention of law, would not be allowed to say that he did so with an innocent mind as he would be assumed to know the law and he could be guilty of malice in law---Was sufficient to prove malice in law if it was shown that impugned action was not countenanced by law under which the Authority had acted. ? Mian Manzur Ahmad Watto v. Federation of Pakistan PLD 1997 Lah. 38 and Ghulam Mustafa Jatoi v. Federation of Pakistan PLD 1988 Lah. 49 ref.
Javaid Saleem Shorish for petitioner.
Malik Muhammad Nawaz/C.D.A. for Respondents.
Date of hearing: 29th June, 2005.
JUDGMENT
MUHAMMAD AKHTAR SHABBIR, J.---This writ petition has been filed by the petitioner to call in question the action of the respondent/CDA, taking illegal forcible possession of the Flat/house No.9, Block No.4-A, Street No.6, Sector I-8/1, Islamabad (hereinafter to be referred as the said house/flat) acquired by the Estate Office, Govt. of Pakistan, Islamabad and alloted to the petitioner.
2. Facts giving rise to the present writ petition are to the effect that the petitioner is serving as Section Officer in the National Assembly Secretariat, Islamabad for the last several years and being a Government servant he was entitled to Government accommodation to be provided by the Estate Office Islamabad. The Estate department of the Federal Government had acquired the house in dispute from respondent No.7 in accordance with terms and conditions of the Accommodation Allocation Rules, 2002 and allotted to the petitioner vide allotment letter No.17 (6399) E.I.C. /EO-4 (452)/2003, E-VII dated the 5th March, 2004 w.e.f. 3-9-2003 and the petitioner was in occupation of the said Flat and residing with his family.
3. The said flat had been allotted to its owner respondent No.6/Sardar Nazakat Khan by the CDA, vide letter dated 12-6-1995 but the same was under litigation between the owner/respondent No.6 and CDA over a bidding dispute and the lis is still under adjudication in the Court of Civil Judge, Islamabad in a suit titled' Sardar Nazakat Khan v. CDA'. The status quo had been issued by the Court which was confirmed on 2-1-2002 and it was again 'extended on 10-3-2004.
4. The grievance of the petitioner is that on 10-3-2004 when he was out of his flat under the instructions of respondent No.2, the Enforcing staff of CDA along with the police force entered into the said flat and started humiliating, harassing, disgracing and mentally torturing his family members. The respondents/officials along with police had trespassed into the said flat unlawfully and ruined the sacredness of a house, violating the principle of Chaddar and Chardevari. The said respondents took over possession of the said flat illegally, forcibly by taking the law into their own hands and without prior notice to the petitioner, despite the fact that respondents Nos.1 to 3 are already contesting the civil suit filed by respondent No.6 against them. The respondents did not approach or ask the Estate Department to recall the requisition of the house and allotment of said flat in favour of the petitioner.
5. Report and parawise comments were called for from respondent No.1 which have been received and perused, wherein, the. respondent has taken the stand that said flat had been allotted through open auction to one Mrs. Anis Fatima, being the highest bidder, who had deposited Rs.2,03,750 on account of 25% price of flat (R/I). The second instalment of Rs.2,03,750 was not deposited by the bidder on due date. Notices were issued to her but she did not deposit the remaining amount. Later on it came to the notice of the Authority that the said flat had been occupied by one Sardar Nazakat s/o Abdul Bashir, who had also filed a civil suit in the Court of Civil Judge, Islamabad alleging that he is an allottee of the said flat by producing a fictitious allotment letter. It was further alleged in the comments that before taking further action site was visited by the concerned staff. The petitioner was also asked to vacate the said flat which he had occupied on fictitious documents. Reasonable time of about one year was given to the petitioner to vacate the said flat and to relocate to another house but he did not comply with the instructions of the respondent, hence, the action was taken against him.
6. Learned counsel for the petitioner contended that the said fall was allotted to respondent No.6/Sardar Nazakat Khan by the CDA through auction vide letter dated .12-6-1995 which was acquired by the Estate Office Islamabad and allotted the same to the petitioner; that the respondent No.1/CDA did not object the requisition of said flat nor asked the Estate Officer to recall or withdraw the allotment order issued in favour of the petitioner and before taking action no notice was issued nor the petitioner was intimated to vacate the same and the action of taking the possession of said flat by the CDA was coram non judice, based on mala fide. Learned counsel for 'the petitioner further argued that the ownership of the CDA over the said flat is still under dispute as a civil suit is pending for adjudication in the Civil Court. Further argued that before getting possession of the said flat from the petitioner, the CDA authorities should have approached or requested the Estate Office of the Federal Government to cancel the allotment order of the petitioner.
7. On the other hand, learned counsel for the respondent/CDA has vehemently opposed the arguments of learned counsel for the petitioner, contending that the allotment allegedly claimed by respondent No.6 is based upon fraudulent and fabricated document and the CDA had not issued any allotment letter in favour of respondent No.6. Argued that the interim relief/injunctive order issued by the Court had elapsed by afflux of time of six months, therefore, there was no bar for CDA to take possession of said flat and whoever was in possession under the ownership of respondent No.6 whose allotment is not admitted by the CDA being encroacher and an illegal occupant and was liable to be ejected.
8. I have heard the learned counsel for the parties at length and perused the record. I have decided to dispose of this writ petition as a notice case.
9. It is admitted position that the said flat was allotted to the petitioner by the Estate Department being employee of the National Assembly in accordance with the Accommodation Allocation Rules 2002. The allotment letter issued by the Joint Estate Officer is available on the file. Further the letter of said flat in favour of respondent No.6 by the CDA has also been annexed with this petition. Undoubtedly, the civil suit filed by respondent No.6 against CDA is sub judice before the civil Court, it means that the ownership title of the CDA is itself under cloudes. The CDA without getting the clearance from the Court of competent jurisdiction would not have acted against the petitioner.
10. The most important aspect of the case is that the said flat was A allotted by the Estate department under Accommodation Allocation Rules 2002 in favour of the petitioner and the respondent/authority if claims ownership over the flat in dispute, why had not protested against allotment of said flat by the Estate department in favour of the petitioner. No letter of protest/objection or request was written by the CDA to the concerned department in this behalf. The petitioner was in lawful possession of the said flat as allottee by the Federal Government.
11. Furthermore, the respondent/CDA had not issued any notice to the petitioner to vacate the premises. Learned counsel for the CDA when confronted with this situation could not produce any document or proof, controverting the same position. This action of respondent No.1, taking the possession, is coram non judice which shows the mala fide on part of respondent/CDA.
12. An action is said to be suffering from mala fides on facts, if it is taken due to some personal grudge, animosity, or for some personal benefit. The state of mind of the person taking action is of great importance. On the other hand, an action is said to be suffering from malice in law if the authority taking the action-is not competent to do so or has acted beyond its powers or in violation of the law applicable even though it may have acted bona fide and without ill-will and a person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, therefore, he may be guilty of malice in law. It is sufficient for malice in law if it is shown that the impugned action is not countenanced by the law under which the authority had acted. Reference in this context can be made to the case of Mian Manzur Ahmad Wattoo v. Federation of Pakistan (PLD 1997 Lahore 38) and Ghulam Mustafa Jatoi v. Federation of Pakistan (PLD 1988 Lahore 49).
13. It is also admitted fact that respondent No.6 was not residing in the said flat and it was the petitioner who was residing and in occupation of the same. The ownership of respondent/CPA has been challenged by respondent No.6 in the Court and the Court has already issued interim injunction, restraining the respondent/CDA from interfering with the said flat. No letter of cancellation of claimed allotment by respondent No.6 had been produced by the learned counsel for CDA. It is also admitted by the learned counsel for CDA that luggages and house hold articles of the petitioner are still lying in two rooms of said flat, and the other portion of said flat has been locked by the CDA.
14. In view of the above discussion, I find that the said respondent has proceeded on the wrong' track and taken the law in its hands by getting possession from petitioner which action would not be sustainable in law in view of the dictums laid down in the cases referred to above.
15. For the foregoing reasons, this writ petition is accepted and the action of the respondent/CDA taking forcible possession of said flat in occupation of the petitioner, is declared illegal, without lawful authority, mala fide and of no legal effect. The petitioner may, under the said judgment of this Court, enter into the said flat and continue his residence.
H.B.T./M-1250/L??????????????????????????????????????????????????????????????????????????????? Petition accepted.