2012 C L C 190
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
ALI AKBAR ZEHRI ----Petitioner
Versus
Syed GU L SHAH and 2 others ----Respondents
Civil Revision No.168 of 2011, decided on 10th October, 2011.
(a) West Pakistan Government Lands and Buildings (Recovery of Possession)
Ordinance (IX of 1966) ---
----S. 4(1) ---Residential Accommodation at Quetta (Pr ocedure for Allotment) Rules,
2009, Rr.5, 6(4), 8(5) & 11(4) ---Specific Relief Act (I of 1877), Ss.42 & 54 ---Civil
Procedure Code (V of 1908), S.9 ---Suit for declaration and permanent injunction ---
Official residence owned by Provincial Government ---Plainti ff being husband of retired
allottee of such residence claimed to be entitled for its allotment and sought restraining
his dispossession therefrom ---Plea of official defendant that plaintiff was in possession of
such residence for last 20 years; that he be ing an employee of another Department could
not be accommodated; and that plaintiff had already been transferred to another District --
--Validity ---Such residence had been allotted to private defendant prior to filing of
present suit ---Plaintiff had not den ied factum of his transfer to another District ---
According to provision of S.4(1) of West Pakistan Government Lands and Buildings
(Recovery of Possession) Ordinance, 1966 and R.11(2) of Residential Accommodation at
Quetta (Procedure for Allotment) Rules, 2 009, allotment of official residence would stand
revoked on transfer of allottee to another station ---Allotment made in favour of plaintiff
remained no more in field after order of his transfer to another District ---Plaintiff had to
establish his legal en titlement to such allotment as per provisions of Residential
Accommodation at Quetta (Procedure of Allotment) Rules, 2009 providing a proper
procedure therefor ---Plaintiff was claiming his right on basis of R.11(4) of the Rules,
whereas in R. 6(4) thereof, a proper remedy was provided to an aggrieved person before
approaching a court of law ---Right to sue would accrue to plaintiff after establishing such
right before competent authority and its denial by authority ---Plaintiff without availing
his remedy bef ore competent authority could not seek declaration in his favour of a right
to be established before competent authority ---Such suit for being not competent was
dismissed in circumstances.
(b) West Pakistan Government Lands and Buildings (Recovery of Po ssession)
Ordinance (IX of 1966) ---
----S. 10 ---Civil Procedure Code (V of 1908), S.9 & O.XXXIX, Rr.1, 2 ---Specific Relief
Act (I of 1877), Ss.42 & 54 ---Suit for declaration and permanent injunction regarding
land or building owned by Government ---Juris diction of civil court to entertain such
suit---Scope ---Provision of S.10 of West Pakistan Government Lands and Buildings
(Recovery of Possession) Ordinance, 1966 pertained to grant of temporary/interim
injunction and did not create a bar on institu tion of a suit for declaration of a right in
respect of such land or building.
Najmuddin for Petitioner.
Nadir Ali Chalgari for Respondent No.1.
Amanullah Tareen, Addl. A. -G. for Official Respondent.
Date of hearing: 27th September, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioner Akbar Zehri, through
instant petition assailed order dated 19th May, 2011 of Additional District Judge -I,
Quetta, whereby the appeal filed by respondent No.1 was accepted, and the case was
remanded to the tri al court for proceeding with the matter in accordance with law. The
petitioner preferred instant petition on grounds that the appellate court failed to consider
the legal aspect of the case, as civil court has no jurisdiction to adjudicate upon the
matter, pertaining to property vests with the Government. It is contended that the
allotment is purely discretion of the concerned Authorities, which in present case is
exercised in accordance with law. The petitioner further raised contention that the
appellate court made an error while making order for remand of the case, instead of
directing respondent No.1 to approach the proper forum, therefore, the order is in
contravention of law. It is also contended that the premises in question is legally allotted
in his favour, while respondent No.1 is forcibly occupying it without proper allotment in
his favour, as such no legal right existed in favour of respondent No.1 this fact is not
considered by the appellate court. Furthermore, there are instances of misappreciat ion of
facts and law, which resulted into a decision, which is contrary to law, thus required to be
set aside. Prayer has been made accordingly.
2. The learned counsel for the parties are heard and record is perused. The learned
counsel for the petitioner while arguing the matter contended that there is a lawful
allotment in favour of the petitioner, thus a legal right existed in his favour, which is not
to be disturbed. The learned counsel relied on Rules applicable in the matter i.e. The
Residential Accom modation at Quetta (Procedure for Allotment) Rules 2009, (hereinafter
referred as Rules of 2009). He referred to Rules 5, 6(4) and 8(5), being relevant in present
case. According to the learned counsel respondent No.1 has adopted a wrong forum for
redressa l of his grievance, thus no relief can be granted in his favour. Learned counsel for
respondent No.1 in reply asserted that the respondent No.1 is entitled for allotment of
premises in question, while relying on Rule 11(4) of Rules of 2009. According to hi m a
legal right existed in his favour and a suit filed under provisions of section 42 of the
Specific Relief Act, in the circumstances is very much competent. It is further contended
by the learned counsel that the petitioner has already been transferred t o Khuzdar, and he
is no more posted at Quetta. He also placed on record order dated 15th January, 2011,
whereby transfer/posting has been made in respect of the petitioner. It was his contention
that in view of the order no legal right remain existed in fa vour of the petitioner. While
learned Additional Advocate -General (A.A. -G.) placed reliance on Rule 6(4) of Rules
2009. It was his argument that the petitioner is required to file appeal before Chief
Secretary, the suit as filed was not competent.
3. The perusal of the record reveals that respondent No.1 plaintiff filed a suit seeking
declaration and permanent injunction, whereby he claimed relief to the effect: --
(a) "Declare that the plaintiff is entitled to retain and get allotment of the House No. E-
32, Wahdat Colony, Quetta;
(b) Declare that the allotment made in the name of defendant No.3 is illegal, unlawful
and void ab initio, as such has no legal sanctity;
(c) By means of injunction, the defendants may kindly be restrained from
dispossessing th e plaintiff from House No.E -32 Wahdat Colony, Quetta;
(d) Any other relief which this honourable Court may deem fit and proper may also be
awarded in the circumstances of the case in favour of plaintiff "
4. He claimed his right on the ground that the prem ises in question was previously allotted in favour
of his wife namely Razia Begum, who was retired on 3rd May, 2010. Therefore, according to relevant
Rules, he being husband of the allottee, is entitled for allotment of the premises in question in his favo ur
after her retirement. The suit was strongly contested by the official respondents, as well as by
the petitioner being defendant No.3. The respondents Nos.1 and 2 being official
defendants raised objection on jurisdiction of the court in view of section -10 of the West
Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966,
(hereinafter referred as Ordinance -IX of 1966), whereby jurisdiction of civil court is
barred. On merits it was their contention that the request made by the p laintiff/respondent
No.1 for allotment of the premises in question was refused due to the reasons: ---
(i) That the said Quarter is in his possession since 1990 (20 -years). He is an
employee of Police Department and Police Department h ave its own colonies
where other employees are not entertained/accommodated. He should apply
for allotment of a Quarter in colonies of Police Department.
(ii) That due to weak financial position of the province, new accommodations have
not been built/constructed for Government employees in Quetta since 30 -years.
Employees are waiting for their turn for allotment of Government accommodation.
All the employees have the right to avail the facility of Government
accommodation. All such factors are co nsidered while process of allotment cases."
5. It is further plea of the official defendants that the premises in question has already
been allotted in favour of present petitioner/defendant No.3. During course of hearing of
the instant petition, it was as ked from learned counsel for the parties that whether a suit
can be filed for a building vested in the Government, allotment of which is claimed by
either of the parties? The learned counsel though argued the petition on merits, but did
not address this po int with specification.
6. In present case matter in issue is a house, though in possession of respondent
No.1, being husband of previous allottee, admittedly owned by Provincial Government.
As per pleadings of the parties, and papers attached thereto, thi s fact is evident that the
premises in question was allotted in favour of the petitioner through order dated 8th
September, 2010, and at the time of filing of the suit he was the lawful allottee. But
during pendency of this petition this fact was brought i nto notice of this court that the
petitioner has already been transferred to Khuzdar. This fact is not denied by the
petitioner, nor by the official respondents. In view of this changed position it is to be
noted that under section 4(1) of Ordinance IX of 1966, it is specifically provided that a
allotment so made shall stands revoked on transfer of the allottee from the station in
which he is employed to any other station. But a condition is provided therein which
reads as under: ---
4. Revocation of license and recovery of possession of building in certain cases. --
- (1) Notwithstanding anything contained in any other law for the time being in
force, or in any contract, where the licensee of a building is a person in the service
of Pakistan, the license in re spect of such building shall, in addition to the grounds
mentioned in section 62 of the Easement Act, 1882 (V of 1882) stand revoked on
the discharge, removal, dismissal, resignation, retirement or death of such servant
or on his transfer from the station in which he is employed to any other station,
after the expiration of the period for which he or his dependents may retain
possession of the building under the rules for the time being applicable to the
license; "
7. In present case applicable Rules are Th e Residential Accommodation at Quetta
(Procedure for Allotment) Rules 2009. The relevant Rule is 11(2), which reads as under: --
"Rule 11(2) In the event of dismissal, removal, resignation, transfer, deputation
and retirement the accommodation shall be vac ated within two months of the
event. "
8. In view of the same after order of transfer, and posting made in respect of the
petitioner, the allotment order made in favour of the petitioner remains no more in the
field. But, it is to be made clear that this fact by itself does not create any right in
favour of respondent No.1, who has to establish his legal entitlement as per provisions of
relevant Rules. A proper procedure is provided in the Rules of 2009, which has to be
adopted by the parties concerned i.e. the official respondents, the petitioner and
respondent No.l. Furthermore, a specific remedy is provided therein to the aggrieved
persons, which are to be availed by them before approaching a court of law, which is the
last resort. In present case the respondent No.1 is claiming his right on basis of
Rule 11(4) of Rules, 2009, which states as under: ---
"Rule 11(4). Allotment of accommodation may be transferred to the
father/mother/real brother/real sister/real son or wife /husband of the allottee, if
he/she is eligible for the same or for a higher type of accommodation at the time of
the event or becomes eligible within two months of the event and beneficiary had
been ordinarily residing with the allottee. In case he/she is entitled to a lower class
accommodation, he/she shall be allotted the first available quarter in that class.
Till such time an alternative accommodation is made available, he/she may retain
the accommodation in his/her occupation on payment of normal rent ."
9. According to the official respondents a specific order has been made in the
matter, whereby request made for allotment of the premises in question was refused to the
respondent No.1, which is not placed on record by either of the parties. Th erefore, no
observations can be made to said extent. But it is to be noted that a proper remedy is
available to an aggrieved person in Rule 6(4) of Rules 2009 which reads as under: --
"Rule 6(4). Appeal against the order of the Chairman may be made to the House
Allotment Committee which may, after due consideration, pass such order as it
may deem fit."
10. The remedy provided therein is admittedly not availed by respondent No.1,
therefore, without availing the same, it will be neither legal, nor proper to f ile a suit
seeking declaration in his favour of a right, which is to be established before the
competent Authority, on first instance, and on denial of his right from their (Authorities)
side, right to sue accrues. In addition the official respondents thou gh raised an objection
on jurisdiction of civil court on basis of section -10 of Ordinance IX of 1966, which states
as under: --
"Section -10. Jurisdiction of Civil Courts barred. --- No Civil Court shall pass an
orders in any suit or proceeding granting a te mporary or interim injunction
restraining Government or any authority or officer authorized by it from taking
possession of any land or building under this Ordinance."
11. The bare perusal of this section reveals that it only pertains to grant of temporary
or interim injunction, which is relevant in case in hand, as quoted section does not create
a bar on institution of a suit for declaration of a right in respect of such Government
owned land and buildings.
12. In view of above discussion, the trial court as well as the appellate court failed to
consider legal aspect of the case, and arrived to a conclusion which is not in conformity
with the law applicable in the matter. Though the matter in issue requires evidence as
rightly held by the appellate court, b ut keeping in view the relevant Rules and material on
record calling for the evidence from either of the parties will be a futile exercise. The
discretion surely vests with the Authority, which has to be exercised in accordance with
relevant Law and Rules, as quoted hereinabove. And if any adverse order is made
affecting any of the parties, proper remedy is available in the Rules, which has to be
availed by the aggrieved persons before approaching court of law.
13. In view of above discussion, the suit was not competent, both the courts below
made error while recording findings to the effect. Therefore, both the orders are not
sustainable, and liable to be set aside. Therefore, order dated 14th December,
2010 of Civil Judge -VII, Quetta, and order dated 19th May, 2011 of Additional District
Judge -I, Quetta, are hereby set aside. The suit stands dismissed being not competent.
The petition stands disposed of in above terms, with no orders as to costs.
S.A.K./131/Q Petition disposedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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