Secretary Communication and Works Department, Government of Balochistan, Quetta and another V. Abdul Majeed and 7 others,
Bench: Rozi Khan Barach
📝 AI Summary — Plain-Language Overview
This case involved a dispute between the Balochistan government and a private landowner, Abdul Majeed. In 2009, Majeed had given a piece of his land to the Communication and Works Department for building a rest house, based on an agreement that in return, the department would give a class-IV government job to a person he nominated. When the government did not honor this promise, Majeed waited six years and then filed a lawsuit in 2015 asking the court to either enforce the agreement or grant him a declaration in his favor.
The trial court dismissed his suit, but on appeal, the Majlis-e-Shoora (appellate court) ruled in his favor and ordered the agreement to be enforced. The government then challenged this decision before the Balochistan High Court.
The High Court sided with the government. It found two major problems with Majeed's case. First, the lawsuit was filed too late, well beyond the three-year legal deadline for seeking enforcement of an agreement, and no explanation was given for the delay. Second, and more importantly, the agreement itself was illegal: government jobs cannot be given out based on private recommendations or as payment for land, since this violates the constitutional guarantee of equal treatment and amounts to effectively selling a public office, which is unlawful under contract law.
As a result, the High Court set aside the appellate court's ruling and restored the trial court's dismissal of the suit, reaffirming that public employment cannot be bought, sold, or promised through private deals.
یہ مقدمہ حکومتِ بلوچستان اور ایک نجی زمیندار عبدالمجید کے درمیان تنازعے پر مبنی تھا۔ 2009 میں مجید نے اپنی زمین کا ایک ٹکڑا ریسٹ ہاؤس کی تعمیر کے لیے محکمہ مواصلات و تعمیرات کو اس معاہدے کی بنیاد پر دیا تھا کہ بدلے میں محکمہ اس کے نامزد کردہ شخص کو کلاس فور کی سرکاری ملازمت دے گا۔ جب حکومت نے یہ وعدہ پورا نہ کیا تو مجید نے چھ سال انتظار کیا اور پھر 2015 میں عدالت میں مقدمہ دائر کیا جس میں درخواست کی کہ یا تو معاہدے پر عملدرآمد کروایا جائے یا پھر اس کے حق میں اعلانیہ ڈگری جاری کی جائے۔
ٹرائل کورٹ نے اس کا دعویٰ خارج کر دیا، تاہم اپیل پر مجلسِ شوریٰ (اپیلیٹ کورٹ) نے اس کے حق میں فیصلہ دیتے ہوئے معاہدے پر عملدرآمد کا حکم دیا۔ حکومت نے اس فیصلے کو بلوچستان ہائی کورٹ میں چیلنج کیا۔
ہائی کورٹ نے حکومت کے حق میں فیصلہ دیا۔ عدالت نے مجید کے مقدمے می
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2021 C L C 1127 [Balochistan] Before Rozi Khan Barrech, J SECRETARY COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF BALOCHISTAN, QUETTA and another ----Petitioners Versus ABDUL MAJEED and 7 others ----Respondents Civil Revision No.228 of 2017, decided on 16th September, 2020. Specific Relief Act (I of 1877) --- ----Ss.12 & 42--- Contract Act (IX of 1872), S. 23---Constitution of Pakistan, Art.25--- Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement and declaration --- Void agreement ---Unlawful consideration--- Plaintiff / respondent gave his land to defendant / authorities for construction of rest house on the basis of an agreement to provide job/service of class -iv to a person nominated by him ---Suit filed by plaintiff / respondent was dismissed by Trial Court but Lower Appellate Court decreed the same in his favour ---Validity ---Such agreement was not according to law as no post could be filled on recommendation of private persons ---Agreement in question had no legal sanctity, it was illegal and against public policy--- No one had a right to be appointed on recommendations of donor of land as the same was in violation of Art.25 of the Constitution--- Agreement of donated land in consideration of employment tantamount to sale of public office which was illegal under S.23 of Contract Act, 1872--- Plaintiff/respondent claimed specific performance of void agreement and Lower Appellate Court did not consider such aspect of the matter while passing judgment ---High Court set a side judgment and decree passed by Lower Appellate Court as the same was passed illegally and irregularly whereas restored that of Trial Court ---Revision was allowed in circumstances. Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 ref. Ahmed Ali Baloch, Additional Advocate General ("AAG") for Petitioners. Basit Shah for Respondents. Date of hearing: 3rd September, 2020. JUDGMENT ROZI KHAN BARRECH, J. ----This Civil Revision Petition in terms of section 115 of The Code of Civi l Procedure (V of 1908) (hereinafter referred as ("C.P.C.") arises out of judgment and decree dated 30.05.2017 (hereinafter "the impugned Judgment") passed by learned Majlis -e-Shoora, Kalat (hereinafter "the appellate court") whereby the appeal filed by the respondents was accepted and the judgment and decree dated 22.10.2016 (hereinafter "the Judgment") passed by learned Qazi Sohrab (hereinafter "the trial court") was set aside.
2. Epitomized facts necessary for adjudication of the instant petition are tha t the respondents/plaintiff filed a suit for declaration, specific performance of the agreement dated 24.03.2009 before the learned trial Court against the petitioners/defendants with the averments that the respondents/plaintiffs provide a piece of land measuring 17270 sqft under Khewat Khatooni No.1, Khasra No.11, Tehsil Surab adjacent to national Highway for construction of Rest House with commitment with that nominee of respondents/plaintiffs will be provided job/service of class -IV by the petitioners/de fendants and in this regard an agreement executed between the parties. The plaintiffs/respondents time and again remanded for provision of job/services to the petitioner/defendant No.2 and all other concern authorities but they did not pay any heed towards their request nor took any notice of the agreement deed signed between the parties. Notice was served upon petitioners/defendants despite that none appeared, and the learned trial Court initiated ex- parte order against them and after that the learned trial Court framed the following issues: -
3. After framing issues, the plaintiffs/respondents produced their respective evidence.
4. After hearing arguments of learned counsel for the plaintiffs/respondents, the suit of the plaintiffs/petitioners was dismissed by the learned trial Court on 22.10.2016.
5. Being aggrieved from the judgment and decree dated 22.10.2016, the respondents/plaintiffs filed an appeal before the learned appellate Court (Majlis -e-Shoora, Kalat).
6. After hearing arguments of the learned counsel for the parties, the appellate court accepted the appeal, set aside the judgment and decree dated 22.10.2016 passed by the learned trial Court and decree the suit of the plaintiffs/respondents on 30.05.2017, whereafter, the petitioners/defendants filed the instant revision petition,
7. I have heard the learned counsel for the petitioners as well as respondents at considerable length and also perused the record with their able assistance.
8. The first limb of the ma tter is that whether the suit filed by the plaintiffs/respondents was barred by limitation or else. The plaintiffs/respondents filed the suit for specific performance of the agreement dated 24.03.2009 by way of filing the suit in the year 2015 that too aft er the lapse of six (06) years and despite that the plaintiffs/respondents stated in their plaint that in the year 2009 he sent a notice to the petitioners/defendants to abide the agreement, but they did not feel any heeds towards the request nor take any notice of the agreement deed signed between the parties, and despite that the plaintiffs/respondents were silent for six years and after six years they filed the instant suit. Limitation to file a suit for specific performance of agreement under section 11 3 of Limitation Act is three (03) years, in the instant case the plaintiffs/respondents filed the suit in the year 2015 which was barred by time. It has time and again been held by the Hon'ble Supreme Court that an aggrieved person has to pursue his legal remedy with diligence and if the suit is filed beyond the period of limitation, each day's delay is to be explained. In the instant case no explanation whatsoever was given in this respect.
9. Section 3 of the Act provides that the institution of the suit after the limitation period shall be subject to the provisions of the Act irrespective of the fact that the limitation has not been pleaded as a defense. It is obligatory on the Court to decide the question of limitation first and only thereafter proceed t o decide the matter on merits. The Court is bound to address the question of limitation irrespective of the fact that whether it was agitated or not. A suit barred by time should be dismissed even if nobody has pointed out such lacuna if the proceedings br ought before the Court are barred by time the Court cannot assume jurisdiction, it shall have no jurisdiction in the matter unless the delay is condoned first for disposal of the suit on merits alone is not sufficient to be presumed that the delay was condoned. The suit/plaint is to be rejected forthwith even without resorting to the evidence or framing of any issues under Order VII, Rule 11, C.P.C. if it appears from the plaint that the suit is barred by limitation. Reliance placed on the reported judgment of the Hon'ble Supreme Court in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153.
10. The claim of the respondents/plaintiffs are that they provided a piece of land measuring 17270 sqft under Khewat Khatooni No.1, Khas ra No.11, Tehsil Surab adjacent to national Highway for construction of Rest House with the commitment that nominee of respondents/plaintiffs will be provided job/service of class -IV by the petitioners/defendants and in this regard an agreement executed be tween the parties which was duly signed by the XEN Provincial B&R District Kalat.
11. The agreement was not according to law because no post can be filled on the recommendation of the private persons. Such agreement has no legal sanctity; it is illegal and against the public policy. According to the said agreement, it means that on the basis of the referred agreement no one has a right to be appointed except on the recommendation of the donor of the land. Such exercise if allowed amounts to a violation of A rticle 25 of the Constitution of Islamic Republic of Pakistan, which reads as under: - "25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
12. If the alleged agreement is abided the landless citizen would be deprived of expectation for appointment as Class -IV employ ee. The agreement of donated land in consideration of employment is tantamount to sale the public office, which is completely illegal. Section 23 of the Contract Act, 1872 is applicable is reproduced as under: - "23. What consideration and objects are lawf ul and what not. The considerate or object of an agreement is lawful, unless it is forbidden by law; or, Is of such a nature that, if permitted, it would defeat the provisions of any law; or Involves or implies injury to the person or property of another; or In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void". In view of the above discussion, the plaintiffs/respondents claim specific performance of the void agreement and the learned appellate court has not considered this aspect of the matter while passing the impugned judgment and has committed gross illegality and irregularity, as such, the impugned judgment and decree dated 30.05.2017 passed by learned Majlis -e-Shoora, Kalat, is hereby set aside, the revision petition filed by the petitioners is accepted and the judgment and decree dated 22.10.2016 passed by learned Qazi Sohrab is hereby upheld. MH/197/Bal. Revision allowed.